Fundamental Rights In The EU Area Of Freedom, Security And Justice [1st Edition] 1108488137, 9781108488136, 1108769004, 9781108769006

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Fundamental Rights in the EU Area of Freedom, Security and Justice

The development of the Area of Freedom, Security and Justice has transformed the European Union and placed fundamental rights at the core of EU integration and its principles of mutual recognition and trust. The impact of the AFSJ in the development of an EU standard of fundamental rights, which has come to the fore since the Treaty of Lisbon, is a topic of great theoretical and practical importance. This is a uniquely comprehensive academic study of the AFSJ and its implications from the point of view of fundamental rights. The contributions to this collection examine the normative and jurisprudential development of the AFSJ in order to assess its effects on the overall construction of the scope and standards of protection of EU fundamental rights in this particularly complex and sensitive field of integration. The expert contributors systematically map and critically assess this area of EU law, together with the relevant case law.

Sara Iglesias Sánchez (PhD Universidad Complutense Madrid; LLM Yale Law School) holds the position of Legal Secretary at the Court of Justice of the European Union. She was previously a lecturer at the University of Cádiz, a doctoral researcher at the Universidad Complutense and a visiting researcher at several academic institutions. She has widely published on EU migration law, citizenship and fundamental rights. Maribel González Pascual is Associate Professor at Pompeu Fabra University, Barcelona, and a member of the Cabinet of the Spanish Ministry on Regional Policies. She was previously a post-doctoral researcher at the Max Planck Institute in Heidelberg, a doctoral researcher at the Universidad de Salamanca and at the INAP (Madrid), and a visiting researcher at several academic institutions. She has widely published on fundamental rights protection in Europe and on federalism.

Fundamental Rights in the EU Area of Freedom, Security and Justice

Edited by Sara Iglesias Sánchez Court of Justice of the European Union

Maribel González Pascual Pompeu Fabra University

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108488136 DOI: 10.1017/9781108769006 © Cambridge University Press 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2021 Printed in the United Kingdom by TJ International Ltd, Padstow, Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Iglesias, Sara (Editor on civil rights in EU), editor. | González Pascual, Maribel, editor. Title: Fundamental rights in the EU area of freedom, security, and justice / edited by Sara Iglesias, Court of Justice of the European Union; Maribel Pascual, University Pompeu Fabra of Barcelona. Other titles: Fundamental rights in the European Union area of freedom, security, and justice Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2020. | Includes bibliographical references and index. Identifiers: LCCN 2020027993 (print) | LCCN 2020027994 (ebook) | ISBN 9781108488136 (hardback) | ISBN 9781108769006 (ebook) Subjects: LCSH: Civil rights – European Union countries. | Asylum, Right of – European Union countries. | Emigration and immigration law – European Union countries. | Double jeopardy – European Union countries. | Due process of law – European Union countries. | Justice, Administrationof – European Union countries. Classification: LCC KJE5132 .F8595 2020 (print) | LCC KJE5132 (ebook) | DDC 341.4/8094–dc23 LC record available at https://lccn.loc.gov/2020027993 LC ebook record available at https://lccn.loc.gov/2020027994 ISBN 978-1-108-48813-6 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

A nuestras hijas, Margarita, Irene y Julia Hasta la luna, ida y vuelta

Contents

List of Contributors Foreword Koen Lenaerts Preface List of Common Abbreviations

Introduction Fundamental Rights at the Core of the EU AFSJ Sara Iglesias Sánchez and Maribel González Pascual

Part I The General Framework for Fundamental Rights Protection in the AFSJ 1

The Scope of EU Fundamental Rights in the Area of Freedom, Security and Justice Sara Iglesias Sánchez

x xiii xvii xviii

1

19 21

2

A European Standard of Human Rights Protection? Maribel González Pascual

3

The Protection of Fundamental Rights within the AFSJ: Through or Against Mutual Trust and Mutual Recognition? François-Xavier Millet

57

Part II Asylum, Migration and Borders

75

Mutual (Dis-)Trust in EU Migration and Asylum Law: The ‘Exceptionalisation’ of Fundamental Rights Violeta Moreno-Lax

77

4

39

5

The Right to Liberty in the Field of Migration, Asylum and Borders Justine N Stefanelli and Elspeth Guild

6

Family Life and the Best Interests of the Child in the Field of Migration Ciara M Smyth

119

The EU Fundamental Right to Asylum: In Search of Its Legal Meaning and Effects Madalina Moraru

139

7

100

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8

9

10

11

12

Effective Remedies and Defence Rights in the Field of Asylum, Migration and Borders Nathan Cambien

159

Part III Judicial Cooperation in Civil Matters

177

Mutual Recognition in Civil and Commercial Matters: On Certified Mutual Trust Magdalena Licˇková and Crístian Oró Martínez

179

The Rights of the Child and the Right to Respect for Family Life in the Revised Brussels II bis Regulation Vesna Lazic´

192

Effective Remedies and Fair Trial in Civil Matters: How to Enhance Civil Justice within the Confines of EU Powers Dominik Düsterhaus

211

Procedural Rights (and Obligations) of Parties to Civil Proceedings Agnieszka Fra˛ckowiak-Adamska

231

Part IV Judicial Cooperation in Criminal Matters and Police Cooperation 13

Mutual Recognition and Fundamental Rights in EU Criminal Law Valsamis Mitsilegas

251 253

14

The Right to Liberty and Security in EU Criminal Law Leandro Mancano

272

15

Defence Rights and Effective Remedies in EU Criminal Law Coral Arangüena Fanego

289

16

Victims of Crime in the Area of Freedom, Security and Justice Luca Lupária and Jacopo Della Torre

312

17

The Principle of Legality in the Area of Freedom, Security and Justice Christina Peristeridou

331

The Interpretation and Application of the Ne Bis In Idem Principle in the EU Area of Freedom, Security and Justice Bas van Bockel

354

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Contents

19

20

21

22

Part V Cross-Cutting Issues of Fundamental Rights in the AFSJ

371

Private Life and Data Protection in the Area of Freedom, Security and Justice Evelien Brouwer

373

Citizenship and Non-Discrimination Rights in the Area of Freedom, Security and Justice Annette Schrauwen

394

Vulnerability and Fundamental Rights in the Area of Freedom, Security and Justice Francesca Ippolito

413

Epilogue: Of Judges and Trust Michal Bobek

433

Index

446

ix

Contributors

Coral Arangüena Fanego, Professor of Procedural Law, University of Valladolid, Spain Michal Bobek, Advocate General, Court of Justice of the European Union Bas van Bockel, Senior Specialist Advisor (EU law), Netherlands Council of State Evelien Brouwer, Senior Researcher/Lecturer, Amsterdam Centre for Migration and Refugee Law, Vrije Universiteit Amsterdam Nathan Cambien, Legal Secretary, Court of Justice of the European Union; Associate Professor, University of Antwerp Jacopo Della Torre, Post-Doctoral Research Fellow, University of Trieste Dominik Düsterhaus, Legal Secretary, Court of Justice of the European Union Agnieszka Fra˛ckowiak-Adamska, Associate Professor, University of Wrocław, Poland Elspeth Guild, Jean Monnet Professor ad personam, Queen Mary University of London; Emeritus Professor, Radboud University, Netherlands; Visiting Professor, College of Europe, Bruges; Partner, Kingsley Napley, London Francesca Ippolito, Associate Professor in International Law, University of Cagliari, Italy Vesna Lazic´, Senior Researcher, TMC Asser Institute, The Hague; Associate Professor, Utrecht University, Netherlands Magdalena Licˇková, Legal Secretary, Court of the European Union Luca Lupária, Professor of Criminal Procedure, Roma Tre University, Rome Leandro Mancano, Senior Lecturer in EU Law, Edinburgh Law School François-Xavier Millet, Professor of Public Law, University of the French Antilles (on leave), currently serving as Legal Secretary, Court of Justice of the European Union Valsamis Mitsilegas, Professor of European Criminal Law and Global Security, Queen Mary University of London Madalina Moraru, Senior Research Fellow, Law Faculty, Masaryk University, Brno, Czech Republic; Research Fellow, Centre for Judicial Cooperation, European University Institute, Florence, Italy Violeta Moreno-Lax, Reader in Law, Queen Mary University of London, and Visiting Professor, College of Europe Crístian Oró Martínez, Lawyer, Research and Documentation Directorate, Court of Justice of the European Union

List of Contributors

Christina Peristeridou, Assistant Professor  of Criminal Law and Procedure, Maastricht University Annette Schrauwen, Professor of European Integration, Amsterdam Centre for European Law and Governance (ACELG), Law Faculty, University of Amsterdam Ciara M Smyth, School of Law and Irish Centre for Human Rights, National University of Ireland, Galway Justine N Stefanelli, Director of Publications and Research, American Society of International Law, Washington, DC

xi

Foreword KOEN LENAERTS *

When the European integration project was first conceived, it was quite clear in the minds of Europe’s founding fathers that the new pan-European body envisaged was to be – initially at least – an economic grouping. As Jean Monnet put it, as early as 1943, ‘[t]he countries of Europe are not strong enough individually to be able to guarantee prosperity and social development for their peoples. The States of Europe must therefore form a federation or a European entity that would make them into a common economic unit.’ Thus, when such a unit was first established, initially as the European Coal and Steel Community in 1952, soon followed by the European Economic Community and EURATOM in 1957, economic integration was the focus of the treaties that governed the operation of those Communities. Today, the European Union has moved well beyond that purely economic paradigm and the internal market, important though it continues to be, has become just one of the building blocks on which European integration is based. Since 1 December 2009 – the date when the Lisbon Treaty entered into force – the European Union has been operating on the basis of new constitutional foundations. Those foundations are the Treaty on European Union, as modified by the Lisbon Treaty; the Treaty on the Functioning of the European Union; and the Charter of Fundamental Rights of the European Union, which is now fully binding and enjoys the same efficacy and force as those treaties. These are the texts that determine the competences and govern the functioning of the Union and that define the fundamental rights enjoyed by the Union’s citizens and other subjects of Union law. Through the Area of Freedom, Security and Justice, the Union has established a shared European space governed by common values such as respect for democracy, fundamental rights and the rule of law. In that European space without internal borders, citizens of the Union may move freely and safely, integrate into the society of the Member State of their choice and fulfil their ambitions free from all discrimination. However, in an area without internal frontiers, the exercise of free movement should not undermine the jurisdiction of national courts and the effectiveness of national law operating on a territorial basis. The ‘long arm of the law’ should

*

President of the Court of Justice of the European Union and Professor of European Union Law, Leuven University. All views expressed are personal to the author.

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Foreword

therefore acquire a transnational dimension, so that, for example, criminals are prevented from relying on free movement as a means of pursuing their activities with impunity. Accordingly, the authors of the EU Treaties reasoned that the free movement of persons should be accompanied by the free movement of judicial decisions. By virtue of the principle of mutual recognition, judicial decisions adopted in the Member State of origin are to be recognised and enforced in the Member State of enforcement as if they were its own. In order for that principle to operate properly, national courts must trust that courts in other Member States are equally committed to upholding the values on which the EU is founded and, in particular, to protecting the fundamental rights of the persons concerned. Thus, in the light of the principle of mutual trust, ‘each of [the Member] States, save in exceptional circumstances, [is] to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’.1 This shows that, whilst the principle of mutual trust is of paramount importance for the creation and maintenance of the Area of Freedom, Security and Justice, mutual trust is not to be confused with blind trust. As my friend and colleague Advocate General Michal Bobek points out in his excellent epilogue to this book, mutual trust is not the only reason why judges in the Member States give effect to EU law instruments that require the mutual recognition of judicial decisions, but it is nevertheless essential. As the Advocate General shrewdly observes, it is somewhat contradictory to regard law as being based on trust, since modern legal systems have to a large extent supplanted trustbased systems in ensuring respect for societal norms. I therefore agree with him that it is preferable to say rather, not least in the present context, that trust among judges must be based on law. That is why the role played by the Court of Justice through the preliminary ruling procedure provided for in Article 267 TFEU is so central in making mutual trust possible, and thus in making mutual recognition work. National judges know that where doubts arise as to the interpretation or validity of the EU norms that are applicable within the Area of Freedom, Security and Justice, the Court is there to act as an impartial, supranational arbiter in order to provide a definitive ruling on such questions, which, moreover, will be binding throughout the European Union. In addition to describing in detail the operation of that system of mutual recognition and the Court of Justice’s case law on the subject of mutual trust, the present work provides a comprehensive guide to the ways in which fundamental rights, particularly those enshrined in the Charter of Fundamental Rights, have been given concrete expression, and indeed practical application, within the framework 1

CJEU, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, para 192.

Foreword

of the Area of Freedom, Security and Justice, both in civil and criminal law contexts. As such, it is a valuable collection for professionals and researchers alike, focused on an important and fast-developing area of Union law, and I highly recommend it to those who are active within fields covered by the Area of Freedom, Security and Justice, as well as to those with an academic interest in those fields.

xv

Preface

This book is the result of a passion shared by the editors, who have eagerly followed and discussed over the last decade the developments in the EU Area of Freedom, Security and Justice and in the field of EU fundamental rights. The idea of putting together such a collection of essays became urgent when, several years after the entry into force of the Lisbon Treaty, the body of case law and legislation in this field had grown to such an extent that it started fuelling heated debates about the essential role, the scope and the standards of EU fundamental rights in the fields covered by the AFSJ. The editors had the chance to discuss the project underlying this book at a workshop at Pompeu Fabra University (Barcelona) in February 2017. This meeting enabled the authors to agree on the theoretical approach, to ensure the coherence of the volume and to include additional topics. Several authors joined the project afterwards, including a number from the Court of Justice of the European Union, greatly enriching the scientific team. We are extremely grateful for their support and openness and for all the valuable exchanges that took place during the preparation of the book. Both the kick-start workshop and the book itself received the support of the Research Group on Constitutional European law and on Supranational Integration (2017 SGR 549). In particular, the editors are indebted to the head of this research group, Alejandro Saiz Arnaiz, for the invaluable support he has given to the project, and to Michal Bobek for always enriching our discussions (and for sharing with us a part of the brains of his team).

Common Abbreviations

AFSJ AG CEAS CDE CFR CISA CJEU CMLRev EAW EC ECHR ECtHR EJML ELJ ELRev EP EU EuConst EYB FD FRA GDPR IACtHR LTR MJ OJ SIS TCN TEC TEEC TEU TFEU UN UNHCR YEL

Area of Freedom, Security and Justice Advocate General of the CJEU Common European Asylum System Cahiers de Droit Européen Charter of Fundamental Rights of the European Union Convention implementing the Schengen Agreement Court of Justice of the European Union Common Market Law Review European arrest warrant European Community European Convention on Human Rights European Court of Human Rights European Journal of Migration and Law European Law Journal European Law Review European Parliament European Union European Constitutional Law Review European Yearbook Framework Decision European Union Agency for Fundamental Rights General Data Protection Regulation Inter-American Court of Human Rights long-term residents Maastricht Journal of European and Comparative Law Official Journal of the European Union Schengen Information System third-country national Treaty establishing the European Community Treaty establishing the European Economic Community Treaty on European Union Treaty on the Functioning of the European Union United Nations United Nations High Commissioner for Refugees, Yearbook of European Law

Introduction Fundamental Rights at the Core of the EU AFSJ SARA IGLESIAS SÁNCHEZ AND MARIBEL GONZÁLEZ PASCUAL

The normative consolidation of the Area of Freedom, Security and Justice (AFSJ) and the entry into force of the Charter of Fundamental Rights of the EU (the Charter) has transformed the Union as we know it. It is common knowledge that the AFSJ has undergone impressive normative and jurisprudential developments in recent times. An abundance of new instruments were adopted in the years following the entry into force of the Treaty of Lisbon, joining the already vast body of pre-Lisbon secondary law in the various fields covered by the AFSJ: civil and criminal judicial cooperation, as well as matters related to borders, migration and asylum. National authorities and courts have now become, or at least are becoming, well acquainted with the AFSJ acquis, which is shown by the impressive increase in the number of preliminary references made by national courts. It is today beyond doubt that the AFSJ has become one of the most prolific areas of litigation before the Court of Justice of the European Union (CJEU).1 This development has gone hand in hand with the entry into force of the Charter as a legally binding instrument by virtue of the Treaty of Lisbon. EU fundamental rights have been codified and granted the same rank as the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) (the Treaties). The increased visibility they acquired quickly led to a rise in direct actions and preliminary references to the CJEU concerning fundamental rights. Fundamental rights litigation is today not only extremely frequent but also increasingly central to the debate about the EU’s constitutional structure and that structure’s relationship with national law and European human rights law. The combined effect of the two aforementioned trends is a qualitative change in the shape and content of European integration. Fundamental rights lie at the heart of the AFSJ.2 It was only a matter of time (and of eliminating pre-existing

1

2

CJEU, Annual Report 2018: Judicial Activity, mentioning eighty new requests for a preliminary ruling and seventy-four cases completed in the AFSJ that year. For some general theoretical approaches to the subject, see D Leczykiewicz, ‘Human Rights and the Area of Freedom, Security and Justice’ in E Fletcher, E Herin-Karnell and C Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2017); S

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limitations on the jurisdiction of the CJEU), before the AFSJ became the most dynamic area of interpretative development of EU fundamental rights. Fundamental rights do not only constitute the basic pre-requisite for the proper functioning of the various rules that constitute the AFSJ acquis; they serve as the bedrock on which the principles of mutual recognition and mutual trust rest. As a result, fundamental rights have progressively unveiled their core function as prerequisites and, ultimately, limits to the principles of mutual recognition and mutual trust. Furthermore, the progressive normative development of the AFSJ has confirmed the need to buttress mutual trust and recognition through harmonisation and normative development. This has led to the adoption of various instruments of secondary law in the blocks of asylum, migration and borders, civil judicial cooperation and cooperation in criminal matters. Those harmonising rules are based on, but go well beyond, the inter-state dynamics of mutual recognition and trust and the promotion of free movement. They establish new common standards that not only make judicial and administrative cooperation possible but also contribute to creating a common and solid ground of shared (although often minimal) EU protection standards. Now that the Charter has reached its critical tenth anniversary as a binding instrument, this book looks at the intersection of these two constellations – the AFSJ and EU fundamental rights – within the constitutional framework erected by the Treaty of Lisbon.

The AFSJ and Constitutionalising the EU It hardly needs saying that the EU has gone beyond a predominantly economic approach to integration. At a symbolic level, this process has led to the evolution of conceptual labels. Described initially as a common market and later as an internal market, the EU is today referred to as an Area of Freedom, Security and

Douglas-Scott, ‘The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights, Mutual Trust and Democracy?’ (2009) 11 Cambridge Yearbook of European Legal Studies 53; V Bazzocchi, ‘The European Charter of Fundamental Rights and the Area of Freedom, Security and Justice’ in G Di Federico (ed), The EU Charter of Fundamental Rights: From Declaration to Binding Instrument (Springer 2011); FJ Donaire Villa, ‘Los Derechos en el Espacio de Libertad, Seguridad y Justicia’ in J Goizueta and M Cienfuegos (eds), La Eficacia de los Derechos Fundamentales de la UE (Thomson Reuters Aranzadi 2014); M Heikkilä and others, ‘Report Critically Assessing Human Rights Integration in AFSJ Policies’ (FRAME Deliverable 11.2, 2015), https://doi.org/20.500.11825/107; JI Ugartemendia and H Labayle (eds), La Tutela Judicial de los Derechos Fundamentales de la Unión Europea en el Espacio de Libertad, Seguridad y Justicia, Curso de Verano UPV/EHU, IVAP/CDRE (Oñate European Inklings 8, 2016).

Introduction: Fundamental Rights at the Core of the AFSJ

Justice (alongside the pre-existing labels). This notion abandons the market as the reference point and signals a territorial conception of the Union as an area.3 The triad of freedom, security and justice amplifies and extends the old market objective of freedom, embodied from the outset in the four fundamental freedoms. It evokes the wider substantive scope of integration, which now extends to the basic functions of security and justice in both civil and criminal matters. In short, the AFSJ entails a significant constitutional reconfiguration of the integration project.4 Since the entry into force of the TFEU, EU competences framed under the AFSJ can no longer be conceived as spin-offs or mere complements to the internal market. Pursuant to Article 3(2) TEU, the AFSJ has become an objective of the Union in its own right. Moreover, the fragmented approach to justice and home affairs inherited from the Treaty of Maastricht has finally been superseded. Title V of the TFEU now brings together the formerly separate blocks of migration, asylum and borders; judicial cooperation in civil matters; judicial cooperation in criminal matters; and police cooperation. The Treaty of Lisbon has therefore culminated in the ‘constitutionalisation’ of the AFSJ. As a result, the general decision-making procedures now largely apply to this area of law. The fragmented typology of acts brought about by the special instruments of the third pillar has been consolidated, with the entire AFSJ now being developed through normal EU legal acts. The previous limits on the jurisdiction of the CJEU in this field have been eliminated. However, the specificity of the AFSJ has not completely vanished. The uniqueness of the former third pillar remains in place to a certain extent. Certain rules concerning decision-making procedures still affect judicial cooperation in criminal matters.5 Transitional rules govern the effects of acts adopted under the

3

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5

H Lindahl, ‘Inside and Outside the EU’s “Area of Freedom, Security and Justice”: Reflexive Identity and the Unity of Legal Space’ (2004) 90 Archives for Philosophy of Law and Social Philosophy 478. See eg M Fichera, ‘Sketches of a Theory of Europe as an Area of Freedom, Security and Justice’ in E Fletcher, E Herin-Karnell and C Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2017). See eg arts 82(3) and 83(3) TFEU establishing the so-called emergency break mechanisms. Recourse to a special legislative procedure is provided for passports, IDs and residence permits (art 77(3) TFEU); sudden inflows of third-country nationals (art 78(3) TFEU); family law matters with cross-border implications (art 81(3) TFEU); the European Public Prosecutor’s Office (art 86 TFEU); and operational police cooperation (art 87(3) TFEU). See generally S Peers, ‘Finally “Fit for Purpose”: The Treaty of Lisbon and the End of the Third Pillar Legal Order’ (2008) 27 YEL 47; C Ladenburger, ‘Police and Criminal Law in the Treaty of Lisbon: A New Dimension for the Community Method’ (2008) 4 European Constitutional Law Review 20.

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previous treaty framework.6 The phenomenon of géométrie variable continues to afflict the AFSJ. The regime of opt-outs that were already in place has been further complicated in the context of Brexit.7 The AFSJ therefore remains a singular and particularly complex area of EU law. The diversity of the substantive topics gathered under the AFSJ umbrella add to this structural complexity. Indeed, it is arguably easier to account for the differences between the AFSJ blocks than it is to explain their similarities. And yet, the AFSJ is marked by a conceptual unity. This is not merely the product of historical coincidence and progressive convergence through treaty reform. More importantly for this book, it reflects a common trend running through the matters covered by the AFSJ – namely, the creeping of EU law into tasks traditionally preserved for the Member States in a way that does not necessarily flow from the dynamics of market integration. Moreover, in the spheres covered by the AFSJ, EU law affects individual rights with particular intensity.8 EU action in this field may strongly affect the balance between fundamental rights and general interests. Such factors have led to additional safeguards not only in the decision-making procedure but also in the mechanism of cooperation between national courts and the CJEU. For example, an urgent preliminary ruling procedure available only for AFSJ matters has been established, and restrictions have been placed on the review of the proportionality of law enforcement measures undertaken as part of judicial and police cooperation in criminal matters. All in all, the AFSJ is the sphere of integration that currently takes centre stage in academic and jurisprudential debates at national, supranational and international levels. The AFSJ revamps the integration project, redefines the territorial space of the Union, reformulates the relationship between the law and citizens, and raises unique challenges for the multilayered protective system of fundamental rights. For the latter, the AFSJ challenges the traditional role of national

6

7

8

Protocol 36 on transitional provisions concerning acts adopted on the basis of titles V and VI of the former version of the TEU prior the entry into force of the Treaty of Lisbon. H Satzger, ‘Legal Effects of Directives Amending or Repealing Pre-Lisbon Framework Decisions’ (2015) 6 New Journal of Criminal Law 528; V Mitsilegas, S Carrera and K Eisele, The End of the Transitional Period for Police and Criminal Justice Measures Adopted Before the Lisbon Treaty: Who Monitors Trust in the European Criminal Justice Area? (CEPS Paper in Liberty and Security in Europe 74, 2014), www.ceps.eu/ceps-publications/end-transitional-period-police-and-criminal-justicemeasures-adopted-lisbon-treaty-who/. See D Curtin ‘Brexit and the EU Area of Freedom, Security and Justice: Bespoke Bits and Pieces’ in Federico Fabbrini (ed), The Law & Politics of Brexit (OUP 2017). See K Lenaerts, ‘The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice’ (2010) 59 International and Comparative Law Quarterly 255.

Introduction: Fundamental Rights at the Core of the AFSJ

jurisdictions as guardians of personal rights, turning them into key components in a multinational system of judicial cooperation based on mutual trust.9 These transformations have led to a situation where considerations of fundamental rights in the AFSJ have a systematic impact on policy developments that may shape the future of political integration. The fact that the Union is now an AFSJ has encouraged EU institutions to adopt a broader and more robust approach to the rule of law in the Member States. Mutual trust and recognition might otherwise be at risk. Indeed, the intrinsic link between mutual trust and the substratum of fundamental rights presumed to be shared by Member States makes any failure to secure the rule of law at national level a threat to the functioning of the EU as an AFSJ.10

The Central Place of Fundamental Rights in the AFSJ The distinct subject matters covered by the different blocks of the AFSJ – EU rules on judicial cooperation (civil and criminal) and migration, asylum and borders – are intrinsically intertwined with fundamental rights in a particularly intense fashion. Integrating the AFSJ has become crucial to the most pressing challenges of our time, such as international terrorism or the refugee crisis. When EU law is adopted, transposed and implemented in these and other fields of the AFSJ, fundamental rights issues are liable to arise at every step. Moreover, the overall guarantee of EU fundamental rights has become dependent on the progress of integration in the AFSJ. Indeed, the Charter itself affirms the importance of the AFSJ in its preamble: together with Union citizenship, this field of integration ensures that the individual is at the heart of the activities of the Union. Against this background, EU law in the areas covered by the AFSJ has proved problematic from the point of view of fundamental rights standards. This is because, firstly, the whole area relies on mutual trust and mutual recognition in the (initial) absence of harmonisation. Maintaining mutual recognition and trust across the EU, regarded as a unified area for the application of the law, relies on a presumption of equivalent protection among Member States. Whether innocent or not, this fiction challenges the traditional understanding of the protective responsibilities of national administrative and judicial authorities. Secondly, harmonisation in the different spheres of the AFSJ is often defined in terms of required minimums or is realised only to a limited extent. This leads to additional hurdles

9 10

See Chapter 22. See Commission, ‘A new EU Framework to strengthen the Rule of Law’ (Communication) COM/2014/0158 final; case C-216/18 PPU LM EU:C:2018:586 (deficiencies in the system of justice).

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when assessing the scope of national discretion and interaction with EU fundamental rights standards. Indeed, it is in this field that national differences and entrenched, competing legal traditions can be very sensitive, as the issues connected with the AFSJ often pertain to the treasured core of sovereignty. Indeed, the AFSJ is symbolically linked to the affective foundations of national constitutional identity. Third, the matters covered by the AFSJ are, by their very nature, more susceptible to fundamental rights violations. In this framework, the fundamental rights obligations placed on Member States by their constitutions and the ECHR are put under particular pressure in the AFSJ. The European Court of Human Rights (ECtHR) and national constitutional and supreme courts are crucial components of the European fundamental rights space, and they all keep a watchful eye on the protection standards provided by EU law in the AFSJ. In particular, this makes the AFSJ the best case study for determining whether the current EU fundamental rights system has adjusted to the specificities of integration in particularly sensitive areas, and whether the progressive construction of the AFSJ meets the standards of the ECHR. At the core of the challenges are the principles of mutual trust and mutual recognition, portrayed as the constitutional principles underpinning the AFSJ.11 The proper construction of the AFSJ – and particularly the smooth operation of the instruments based on mutual recognition – depends on the solidity of its architecture of rights. Mutual trust has become a principle of ‘fundamental importance in EU law’.12 The centrality of this principle is intrinsically connected to mutual trust among Member States as the articulating element of the AFSJ – and as a core component of the Union’s uniqueness. This uniqueness was one of the key arguments put forward by the CJEU when finding the draft agreement on accession to the ECHR to be incompatible with EU primary law.13 According to Opinion 2/13 of the CJEU, mutual trust requires each of the Member States, ‘save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’.14 Despite the potential for conflict,15 in the pre-accession status quo the ECtHR confirmed its position of deference (the Bosphorus presumption of equivalent 11

12

13 15

K Lenaerts ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’ [2015] Il Diritto dell’Unione Europea 530; E Herlin-Karnell, ‘Constitutional Principles in the EU Area of Freedom, Security and Justice’ in D Acosta and C Murphy (eds), EU Security and Justice Law (Hart 2014). Opinion 2/13 (Accession of the European Union to the ECHR) EU:C:2014:2454 (18 December 2014) para 191. 14 ibid. ibid (emphasis added). A Kornezov, ‘The Area of Freedom, Security and Justice in Light of the EU Accession to the ECHR: Is the Break-Up Inevitable?’ (2012) 15 Cambridge Yearbook of European Legal Studies 227; E Brouwer, ‘Mutual Trust and Human Rights in the AFSJ: In Search of Guidelines for National Courts’ (2016) 1 European Papers 893.

Introduction: Fundamental Rights at the Core of the AFSJ

protection)16 to the level of protection granted by the EU in the specific field of mutual recognition in the AFSJ.17 However, the ECtHR laid down the groundwork for a more exhaustive analysis in Avotinš v Latvia. In this case, which concerned judicial civil cooperation, the ECtHR examined the merits while recognising that the state in question had not been afforded any margin of appreciation. It may be no coincidence that this development followed hard on the heels of Opinion 2/13. Indeed, the ECtHR issued an explicit warning: [I]f a serious and substantiated complaint is raised before [the Member States] to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.18

National constitutional and supreme courts have continued to underline the ‘hard limits’ of trust19 and have progressively engaged in judicial dialogue with the CJEU in order to dispel pertinent doubts over the congruent functioning of the interlocking levels of protection.20 In this context, the CJEU has been progressively building on the idea that mutual trust is not equivalent to ‘blind trust’.21 The CJEU is designing system safeguards to deal with ‘exceptional circumstances’ that justify departing from the quasi-automaticity of mutual recognition. Case law has been gradually determining the role that fundamental rights imperatives play in the operation of EU legal acts based on mutual recognition and mutual trust and specifying the conditions under which they do so. Starting with the NS case concerning asylum within the so-called Dublin system22 following a strong message by the ECtHR,23 the jurisprudential consolidation of fundamental rights as potential limits to mutual trust is today also firmly embedded in the field of judicial cooperation in criminal matters after the seminal judgments in Aranyosi and Ca˘lda˘raru, ML and LM.24

16 17 18 19

20

21

22

23 24

See Bosphorus Airways v Ireland (ECtHR, 30 June 2005). See Povse v Austria (ECtHR, 18 January 2011). Avotin‚š v Latvia (ECtHR, 23 May 2016) para 116. See German Constitutional Court, BVerfG, Order of the Second Senate of 15 December 2015, 2 BvR 2735/14. See eg Case C-303/05 Advocaten voor de Wereld EU:C:2007:261; Case C-399/11 Melloni EU:C:2013:107; Case C-168/13 PPU F EU:C:2013:358. See K Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CMLRev 805. See Joined Cases C-411/10 and C-493/10 NS and Others EU:C:2011:865; Case C-394/12 Abdullahi EU:C:2013:813. MSS v Belgium and Greece, App no 30696/0921. Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Ca˘lda˘raru EU:C:2016:198; Case C-220/18 PPU ML EU:C:2018:589 (conditions of detention in Hungary); LM (n 10).

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It is true that the courts’ case law according to which fundamental rights constitute sufficient and practical grounds for limiting mutual trust and recognition continues to be debated and needs to be developed.25 This is a necessary consequence of the incremental and casuistic nature of case law. However, it has become clear that the role of fundamental rights in limiting mutual trust cannot be automatically restricted to instances of systemic deficiencies, as made clear by the CJEU in CK and Others26 (again in the asylum field and after a strong message from the ECtHR).27 Furthermore, derogations from mutual recognition and trust are justified not only by violations of absolute or non-derogable fundamental rights, such as the prohibition of torture and inhuman or degrading treatments in Article 4 of the Charter.28 The Court has also confirmed without hesitation the essential role played by the right to effective judicial protection and the rule of law – which is fundamental to mutual trust – in the field of judicial cooperation. Breaches of the fundamental right to a fair trial guaranteed by Article 47 of the Charter which result from systemic or generalised deficiencies affecting the independence of the judiciary may also justify refusing execution of a European arrest warrant.29 That said, case law never produces a neat classification grid with mathematical clarity. However, more developments are to be expected along the lines of the general criteria that have already begun to emerge.30 It would appear that the assessment carried out by executing judicial authorities must not disregard the specific risk, severity and consequences of a violation, the nature of the fundamental right at stake – its absolute nature or its connection to the rule of law or other fundamental EU values – or the specific level of harmonisation and safeguards embedded in the EU act at issue. Despite the practical challenges that the application of the new developments will undoubtedly raise, the fundamental rights exceptions are buttressing pillars rather than ‘cracks’ in the wall of mutual trust.31 Recent jurisprudential developments in the Strasbourg Court show that a coherent approach to mutual trust that

25

26

27 28

29 31

On this debate see E Xanthopoulou, ‘Mutual Trust and Rights in the EU Criminal and Asylum Law: Three Phases of Evolution and the Uncharted Territory beyond Blind Trust’ (2018) 55 CMLRev 489. Case C-578/16 PPU CK and Others EU:C:2017:127. See S. Montaldo, ‘On a Collision Course! Mutual Recognition, Mutual Trust and the Protection of Fundamental Rights in the Recent CaseLaw of the Court of Justice’ (2016) 1 European Papers 965; S Prechal, ‘Mutual Trust Before the Court of Justice of the European Union’ (2017) 2 European Papers 75. Tarakhel v Switzerland (4 November 2014) CE:ECHR:2014:1104JUD 002921712. See I Canor, ‘My Brother’s Keeper? Horizontal Solange: “An Ever Closer Distrust Among the Peoples of Europe”’ (2013) 50 CMLRev 383, 403. 30 LM (n 10). See eg Case C-128/18 Dorobantu EU:2019:857. On the intensity of the executing judicial authority’s review of the EAW, see C-128/18 Dorobantu EU:C:2019:334, Opinion of AG Campos Sánchez-Bordona.

Introduction: Fundamental Rights at the Core of the AFSJ

safeguards fundamental rights can satisfy the requirements of the ECtHR.32 At the same time, EU law has furthered positive harmonisation in the AFSJ. This is, to a certain extent, a by-product of the need to build mutual trust. Fundamental rights have transformed the dynamics of integration in the AFSJ: if mutual recognition based on mutual trust was initially a means of enabling cooperation despite reticence to harmonisation, the need to bolster this trust and safeguard the effectiveness of mutual recognition has in turn increased the need for substantive harmonisation. The adoption, transposition and implementation of both positive (harmonising) and negative (mutual-recognition-based) EU legislation requires constant monitoring of fundamental rights protection. Through this intensive normative action and its interpretation in case law, the EU is progressively defining its conception of rights through constant interchange with the ECHR and the various national constitutional traditions. With regard to national constitutional systems, the autonomy of EU fundamental rights presents unique challenges to the multilevel system of rights protection in Europe. EU legal rules in the fields covered by the AFSJ pose challenges both for EU institutions and for Member States. New areas of competence have been opened for interaction between EU law and national law. The operation of the principles that govern the interaction between EU and national law – primacy, direct effect, conform interpretation – have reappeared, posing new challenges in areas previously unexplored by EU law.33 Not all the challenges are new, however, as EU law already deployed outside the AFSJ has important effects in criminal and migration law through internal market rules, as well as in civil judicial cooperation through international conventions. However, the intensity and breadth of the normative action of the Union at the current stage of development of the AFSJ has brought many latent or at least relatively unexplored issues to the fore.

Fundamental Rights in the AFSJ: The Structure of This Book and Its Chapters The essays in this compilation examine the normative and jurisprudential development of the AFSJ with a view to assessing its effect on the overall scope and standards of EU fundamental rights protection in this particularly complex and sensitive field of integration. 32

33

With respect to the EAW, see Romero Castaño v Belgium (ECtHR, 9 July 2019) CE:ECHR:2019:0709JUD000835117. See Case C-105/03 Pupino EU:C:2005:386; Case C-439/16 PPU Milev EU:C:2016:818; Case C-573/17 Popławski EU:C:2019:530. In relation to criminal sanctions concerning TVA, see Case C-105/14 Taricco and Others EU:C:2015:555; Case C-42/17 MAS and MB EU:C:2017:936.

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The General Approach The chapters of this book analyse EU legislation (primary and secondary) and case law from the point of view of their impact on the standard and scope of fundamental rights protection in the AFSJ. The emphasis is on the role of fundamental rights as a yardstick for judicial review of both EU legal acts and national legislation (which falls within the scope of EU law), as well as their importance as interpretative guides. What impact has EU secondary law had on the construction of an EU standard in respect of particular fundamental rights? How have the challenges linked to harmonisation and mutual recognition shaped the interpretation of specific fundamental rights in the different fields of the AFSJ? How is EU action in the AFSJ shaping the jurisprudential construction of an autonomous standard of protection for specific fundamental rights? How do these developments interact with national standards and ECHR standards? This book does not include a separate examination of ECtHR case law or national constitutional law. The role of the ECHR and ECtHR case law is examined as part of the system of EU fundamental rights within each chapter. Rather than taking a conflictual approach, the book seeks to offer an account of current trends and potential solutions to the identified areas of tension at EU level. Furthermore, the book does not seek to provide an exhaustive description of instruments of secondary law or a systematisation of legislative developments in the AFSJ. The various instruments of secondary law are studied in relation to each chapter’s centre of gravity, which is determined by the content of the fundamental rights in question. Hence, fundamental rights that are central to the development of each of the blocks of the AFSJ have been selected as the elements around which the book is structured.

The Structure of the Book The book is divided into five parts. Part I deals with general structural elements: the scope of fundamental rights in the AFSJ; the standard of protection; and the principles of mutual trust and mutual recognition as core components of the AFSJ. Parts II, III and IV are each devoted to one of the three main blocks of the AFSJ: migration, asylum and borders; judicial cooperation in civil matters; and cooperation in criminal matters. Finally, Part V consists of three horizontal studies of specific fundamental rights that traverse all three blocks: data protection; citizenship and non-discrimination; and the protection of vulnerable groups. This book readily acknowledges the distinct structure, content and fundamental rights implications of the different blocks of the AFSJ. Indeed, the factors driving harmonisation and mutual recognition are not identical across the blocks. However, the constitutional sense of unity that the Treaties lend to the AFSJ, the shared challenges in terms of fundamental rights, and the perception of this field

Introduction: Fundamental Rights at the Core of the AFSJ

of EU law as the most relevant non-economic pillar of EU integration make it worthwhile analysing those differences in parallel and through structured comparisons. The reader may therefore find it of interest to jump from one part of the book to another, so as to compare the approaches taken to the same fundamental rights in the three different thematic blocks of the AFSJ. The general studies comprising Part I of the book begin with a transversal examination of the scope of EU fundamental rights in the AFSJ by Sara Iglesias Sánchez. The chapter focuses on the controversial issue of the application of EU fundamental rights in Member States. The general difficulties raised by the test of the Charter’s applicability to Member States are amplified by both the nature of the subjects covered by the AFSJ and legislative action in this area. Some of the harmonising measures in the AFSJ regulate or develop the content of fundamental rights (as is clearly the case with the family reunification and the procedural criminal law directives). Other acts rely on the dynamic of mutual recognition of judicial decisions or are based on mutual trust in public or administrative systems in which many different factors may influence the protection of fundamental rights up- and downstream. These particularities have made it difficult to determine the extent to which Member States are implementing EU law. In Chapter 2, Maribel González Pascual explores the coexistence of several layers of fundamental rights, which is all the more complex as certain aspects of the AFSJ are particularly sensitive to fundamental rights. Furthermore, the principle of mutual recognition implies that decisions taken in one Member State are recognised and executed in any other Member State based on the assumption that all Members States have a sufficient level of fundamental rights protection. Hence, it is of paramount importance to (1) ascertain whether the fundamental rights protection guaranteed by the AFSJ is sufficient, (2) determine its core elements, and (3) identify the problems raised by its operation in practice. Within this framework, the chapter seeks to discover whether the CJEU is building a European standard of fundamental rights in the AFSJ. Chapter 3 by François-Xavier Millet offers a general conceptual analysis of the principles of mutual recognition and mutual trust. Millet shows how the principle of mutual trust, initially designed to buttress mutual recognition, has progressively grown. In practice, these principles entail not only the recognition of particular decisions but also mutual recognition of national institutions acting in the AFSJ, such as judicial and penitentiary systems. Although the CJEU and the EU legislator may have bolstered mutual recognition by flanking it with the new ‘principle’ of mutual trust, a recent turn to realism has acknowledged that there may be grounds for ‘deactivating’ mutual recognition in exceptional circumstances related to a Member State’s failure to respect fundamental rights. While this development may spell tension between the protection of fundamental rights and the principles of mutual recognition and mutual trust, the chapter concludes that a high level of

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fundamental rights protection calls for a rethinking of the function and content of mutual trust. The principles of mutual recognition and mutual trust have challenged traditional conceptions of fundamental rights protection in Member States. Three chapters analyse those challenges prefiguring the subsequent parts of the book devoted to the three thematic blocks of the AFSJ. Chapter 4 by Violeta Moreno-Lax explores how mutual trust is becoming an organising principle that underpins the mechanisms of (implicit) mutual recognition in the fields of migration and asylum within the AFSJ. By classifying measures as either rights-conferring or rights-restricting, the chapter unveils a contradictory dynamic: whereas mutual recognition of rights-restricting measures is close to automatic and practically unconditional, the mutual recognition of rights-conferring measures is virtually non-existent. The author explains that the most plausible reason for this paradox lies in the interplay between presumed (abstract) trust, as required by the case law of the CJEU, and real (practical) distrust, manifested horizontally and vertically in the day-to-day exercise of EU migration and asylum governance. The negative effects of this interplay on third-country nationals are considerable, particularly in the case of asylum seekers, and leads to the ‘exceptionalisation’ of their fundamental rights. Chapter 9, written by Magdalena Licˇková and Crístian Oró Martínez, examines the principles of mutual trust and mutual recognition in the field of civil judicial cooperation. The nature and operation of judicial recognition and enforcement within the Union is based on mutual trust in other Member States’ judicial systems. Under this framework, recognition and enforcement operate quasi-automatically. The chapter outlines the major phases in the development and shaping of the Union’s system of judicial recognition and enforcement system. In addition, the chapter examines developments in case law concerning the substantive and formal requirements that condition, albeit minimally, the free circulation of judgments within the Union. It concludes with some remarks inspired by the recent move to make judicial independence one of the fundamental prerequisites for the mutual trust upon which the very functioning of judicial cooperation within the Union relies. Chapter 13 by Valsamis Mitsilegas analyses the extent to which the harmonisation of fundamental rights in EU secondary law provides a basis for enhanced mutual trust and thus facilitates the operation of mutual recognition in criminal matters. The evolution of CJEU case law, particularly with regard to the EAW, and the development of EU harmonising legislation facilitating mutual recognition in respect of defence rights signal a move towards effective and real compliance with fundamental rights. This evolution represents a progressive shift from blind to earned trust in Europe’s area of criminal justice. The chapter also identifies practical problems and unresolved questions concerning the operation of this new approach to mutual recognition and trust.

Introduction: Fundamental Rights at the Core of the AFSJ

Following the introductory chapters on mutual recognition and trust, Parts II, III and IV of the book are devoted to an analysis of normative and jurisprudential developments in the AFSJ. The chapters in these three parts focus on the effects of these developments on particular fundamental rights or a bundle of interlinked fundamental rights. As already mentioned, the book does not provide a commentary of Charter rights article by article. The chapters concentrate instead on the most salient fundamental rights issues in each block of the AFSJ. This structuring of the analysis around particular fundamental rights is better suited to scrutinising the impact of EU secondary law and case law on the standard of protection in EU law, taking the Charter as its point of reference. It also makes it possible to explore parallel developments in the three blocks and identify points of convergence and divergence in legislative development and case law. Particular attention is given to procedural rights, with the analyses reflecting the complexities inherent in each of the AFSJ’s three blocks. As explained by Nathan Cambien in Chapter 8, procedural rights have had a very strong influence in the field of immigration, asylum and borders. They play a crucial role in establishing fundamental guarantees for substantive rights. In particular, the right to an effective remedy and the right to be heard have acquired greater importance in the case law of the CJEU and in EU secondary legislation, raising the standard of protection in this field. Other fundamental procedural rights, such as the right to access records, the right to legal assistance and representation and the right to legal aid, remain in a comparatively embryonic stage, but they could prove extremely relevant to future developments in the EU acquis. Two chapters are devoted to the protection of procedural rights in the field of civil judicial cooperation. In Chapter 11, Dominik Düsterhaus focuses on the implementation and scrutiny of fair trial guarantees under EU law in civil matters. Düsterhaus argues that both normatively and institutionally the framework of civil judicial cooperation is structurally deficient insofar as domestic courts’ assessments of whether proceedings are fair remains largely exempt from EU oversight. This deficiency is attributed to the limited scope of CJEU jurisdiction over fundamental rights. It is nevertheless suggested that the CJEU’s use of the second subparagraph of Article 19(1) TEU as a benchmark for judicial organisation may eventually lead to a tightening of the Court’s grip. Chapter 12 by Agnieszka Fra˛ckowiak-Adamska takes the analysis further by considering whether the EU’s legislators and judiciary strike the right balance between two fundamental procedural rights stemming from the right to a fair trial – right of access to the court and right of defence – in the field of judicial cooperation in civil matters. The analysis focuses on secondary law and case law, with particular regard to the obligation of the defendant to exhaust all remedies available in the state of origin and the importance of introducing EU-wide standards in civil cases.

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It is noteworthy that in the field of criminal law, in stark contrast to the situation in the field of judicial cooperation in civil matters, procedural rights have been the subject of a major operation of harmonisation through EU secondary legislation. As shown by Coral Arangüena in Chapter 15, this minimal approach has strengthened basic elements for mutual recognition. Six directives on procedural rights have been enacted, providing a point of reference for procedural guarantees. Incorporated in the EU legal order through secondary legislation, those guarantees should be regarded as an integral part of the protection afforded by Article 48(2) of the Charter. The chapter offers an overview of the procedural directives, highlighting shortcomings that have come to light during the implementation process as well as difficulties encountered in their application by judicial authorities. Although procedural rights seem omnipresent in the cases discussed, other fundamental rights also feature prominently in certain fields of the AFSJ. Such is the case of the right to family life, which is of great relevance to the fields of migration and asylum law in addition to civil judicial cooperation. Such is also the case of the right to liberty and security, which occupy centre stage not only in the fields of immigration and asylum law but also in the field of judicial cooperation in criminal matters. The right to family life is of paramount importance in asylum and migration law and in civil judicial cooperation. In Chapter 6, Ciara M Smyth offers a thorough and critical assessment of jurisprudential developments concerning the family reunification directive, the key piece of secondary legislation regulating the right to family life in the field of immigration – a field she describes as ‘differentiated and fragmented’. She analyses whether and to what extent the CJEU relies on fundamental rights in giving shape and meaning to the directive, focusing on the Court’s ambiguous position regarding the role that fundamental rights should play in this controversial policy area. In Chapter 10, Vesna Lazic´ analyses the right to family life and the best interests of the child in judicial cooperation in civil matters. Her contribution provides insight into how certain rights of the child – definition of the child, best interests and hearing of the child – have been incorporated in the recently revised Brussels II bis Regulation. The focus is on the ‘overriding mechanism’ in child abduction cases. The chapter points out major flaws in the current regulation’s scheme, as illustrated in relevant CJEU case law. It looks at how the recast regulation addresses the weaknesses of the current framework and assesses the appropriateness and effectiveness of the amendments, – critically examining whether the revised regulation is likely to overcome the difficulties that have been encountered. Several EU instruments in the field of EU immigration and asylum law, and some in the field of EU criminal law, allow for, or even presuppose, the possibility of Member States adopting measures entailing deprivation of liberty. Hence, two

Introduction: Fundamental Rights at the Core of the AFSJ

chapters examine how the right to liberty and security operates in the fields of immigration and asylum on the one hand and criminal law on the other. Chapter 5 by Justine N Stefanelli and Elspeth Guild analyses how the CJEU has dealt with the competing interests of the right to liberty and an effective system for immigration, asylum and borders in the EU in the context of the Return Directive, the Reception Conditions Directive and the Dublin III Regulation. Where explicit rules governing detention exist, the authors point out that the standard of protection guaranteed by EU law goes beyond the standard offered by the ECHR. Moreover, the case law relating to the Return Directive has relied on effectiveness in a way that has enhanced the right to liberty. However, it is not clear how solid this ‘liberty enhancing’ effect is, as the case law of the CJEU interpreting the Return Directive does not rely on fundamental rights arguments. The chapter concludes that, although the CJEU has in many cases aligned its approach with that of the ECtHR, distinct, EU-specific jurisprudence on the right to liberty is beginning to emerge. In the field of criminal law, while the European arrest warrant was initially the principal subject of debate, discussions on the impact of EU criminal law on the right to liberty have since broadened in scope. Chapter 14 by Leandro Mancano addresses this development and the role of the right to liberty in three scenarios: EU measures triggering cases of continued detention through mutual recognition; EU measures safeguarding the right to liberty; and EU measures facilitating alternatives to detention. The chapter argues that, while progress has undoubtedly been made, much remains to be done for the liberty of persons in criminal proceedings and judicial cooperation procedures to be adequately protected. Some fundamental rights have a particular imprint in specific areas, or a scope of application that is limited to specific thematic issues. This is the case of the right of asylum, whose unique role and development within the EU fundamental rights system is analysed by Madalina Moraru in Chapter 7. Moraru’s discussion of the scope and effects of the EU fundamental right to asylum delves chiefly into the scope of Article 18 of the Charter as compared to the principle of non-refoulement guaranteed by the 1951 Refugee Convention. It also covers the extraterritorial application of the EU fundamental right to asylum and its content, and the actors who contribute to the normative clarification of the right to asylum. The chapter demonstrates the added value of the EU fundamental right to asylum as reflected in the various functions it plays at EU and national levels. Criminal law merits special attention with regard to several charter rights, including the principle of legality, the ne bis in idem principle and the rights of the victims. The role of the principle of legality as a fundamental right in criminal law is examined by Christina Peristeridou in Chapter 17. Peristeridou identifies several

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inconsistencies and shortcomings in the application of this principle in the area of EU criminal law. The principle’s application to mutual recognition is effectively excluded, and the same goes for rules on jurisdiction. These two lacunae result in uncertainty in the cross-border application of criminal law. Moreover, the CJEU has sought to restrict the application of the legality principle to limitation rules using contradictory reasoning. The chapter highlights three significant challenges: multilevel criminal justice created by the institutional arrangements of the European legal order; the everlasting conflict between due process and crime control observed in European criminal policy; and the lack of defined theoretical rationales and values justifying the principle of legality. Bas van Bockel offers an in-depth examination of the application of the ne bis in idem principle in Chapter 18. After offering a general account of the sources and components of that principle, the author traces its spectacular development in the AFSJ over the past two decades. Van Bockel emphasises the productiveness of the judicial dialectic that the Van Esbroeck/Zolotukhin line of case law prompted between the CJEU and the ECtHR. He nonetheless points out that the case law on the application of the principle to the interaction between administrative, criminal and tax law still raises questions linked to the fundamental relationship between criminal and (punitive) administrative law. The rights of victims are examined by Luca Lupária and Jacopo Della Torre in Chapter 16. The authors provide an overview of the complex and vast legal framework that the EU has adopted in recent decades to protect victims of crime in the AFSJ, especially from the point of view of procedural rights. They draw particular attention to both the relevant case law of the CJEU and the stance taken by national legal systems when implementing EU minimum standards. The chapter also analyses the impact of the Charter on the standard and scope of the rights of victims and offers thoughts for the future by looking at developments that, in the years to come, may compensate for the lack of effectiveness that, in many cases, still characterises the rights of victims within the AFSJ. The last part of the book examines transversal fundamental rights issues that cut across all the subjects covered by the AFSJ: the right to data protection; citizenship and non-discrimination; and the protection of vulnerable groups. In Chapter 19, Evelien Brouwer analyses the normative and institutional developments in the AFSJ that are likely to have a strong impact on the fundamental right to data protection. Brouwer offers an overview of the different mechanisms have been set up to collect, store and exchange personal data for the purpose of law enforcement and border and immigration control. These instruments provide for the exchange of information between judicial and law enforcement authorities, transfer of data to third states, and the creation of large-scale databases such as the Schengen Information System, Eurodac and the Visa Information System.

Introduction: Fundamental Rights at the Core of the AFSJ

The chapter analyses the use of these instruments, the involvement of third parties and the principle of interoperability from the perspective of the right to privacy and data protection. In Chapter 20, Annette Schrauwen examines the impact of AFSJ policies on the fundamental rights linked to EU citizenship and on the non-discrimination principle. Indeed, the AFSJ was said to have been created to foster free movement. The chapter discusses that claim by highlighting the interaction between the traditional rights of free movement and non-discrimination of EU citizens on the one hand and the specific AFSJ measures on immigration and criminal and civil matters on the other. The author shows that the law has not evolved unidirectionally and that it is difficult to predict how the objectives of the AFSJ will be interpreted when the rights of free movement and non-discrimination are taken as points of reference. The consideration and protection of vulnerable groups in the three blocks of the AFSJ are addressed by Francesca Ippolito in Chapter 21. She explains that we are witnessing a process of progressive ‘vulnerabilisation’ in EU law. After explaining this notion, she examines the normative effects of vulnerability within the frame of fundamental rights protection in the AFSJ. The chapter claims that the notion of vulnerability could enhance the effectiveness of fundamental rights protection and raise the profile of the justice aspect of the AFSJ, since it requires the development of a more sophisticated ethic of Member State duties. In his epilogue in Chapter 22, Michal Bobek reflects on the difficulties and challenges that the notion of trust presents for judges. Through a historical excursion, he demonstrates how basing the operation of an area of law on trust is likely to clash with a rich and powerful bundle of ideas and historical experience at national level. Capturing the essence of the overall conclusion that may be drawn from this volume, he eloquently invites us to consider a change of paradigm from law based on trust to trust based on law: ‘[T]rust is not a pre-requisite for the law, but rather something that the law and social interaction generate. Trust becomes the end destination, not the starting point.’

17

PART I The General Framework for Fundamental Rights Protection in the AFSJ

1

The Scope of EU Fundamental Rights in the Area of Freedom, Security and Justice SARA IGLESIAS SÁNCHEZ

1.1 Introduction After ten years of application, heated debates continue to question the boundaries of fundamental rights as determined by the Charter of Fundamental Rights of the EU (the Charter). This instrument has brought fundamental rights to the fore in EU law. The number of fundamental rights cases brought before the CJEU began to multiply as soon as the Charter became part of mainstream EU legal language.1 Therein lies the challenge: in a union of law based on the principle of attributed competences, the scope of application of these rights is limited, which in turn limits the jurisdiction of the CJEU. As might be expected, the general debate over the scope of EU fundamental rights is accentuated in the Area of Freedom, Security and Justice (AFSJ). This area of EU law thus represents a particularly apt testing ground for gauging the implications of expanding the scope of EU fundamental rights. Even though it is now clear that fundamental rights can be affected in any field of EU law, the legal spheres covered by the AFSJ – civil and criminal law, plus border, migration and asylum policies – all, by their very nature, touch directly on especially fundamental-rights-sensitive matters. This deep connection is already apparent in the Charter’s preamble, which emphasises that the Union ‘places the individual at the heart of its activities … by creating an area of freedom, security and justice’. Here, we have a vivid illustration of the key impact that the development and consolidation of EU fundamental rights through the Charter, combined with their application in a fully communitarised AFSJ, has on the process EU constitutionalisation.2 A great many EU fundamental rights are affected, if not exclusively then predominantly, by the thematic content of the AFSJ. Examples are the right to liberty

1

2

All the opinions expressed in this chapter are personal to the author. See, generally, G De Burca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20 MJ 2168. On the CJEU’s role in the AFSJ as part of this constitutionalisation process, see E Herlin-Karnell, ‘The European Court of Justice as a Game-Changer’ in A Ripoll and F Trauner (eds), The Routledge Handbook of Justice and Home Affairs Research (2017).

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and security, the right to asylum and the non-refoulement principle. Other fundamental rights, such as the procedural guarantees enshrined in Articles 47 to 50 of the Charter, or the right to family life in Article 7 of the Charter, are also central to the AFSJ. One could therefore say that the Charter’s relevance is enhanced in the AFSJ, for it is there that many provisions of the Charter that would otherwise remain dormant or scarcely used in practice come into play. Furthermore, the AFSJ broadens EU law by bringing within its scope not only new fields of material law but also new dynamics of interaction between EU law and national law. Indeed, the common migration and asylum policy directly regulates rights and personal status regardless of EU free movement rules. Similarly, rules on judicial cooperation in the civil and criminal fields introduce EU procedural law into areas whose substantive content is not harmonised. Lastly, mutual recognition of decisions both in the civil and criminal fields, as well as the application of the principle of mutual trust in the fields of migration and asylum, have a direct and intense effect on individual rights and raise new questions concerning the protective responsibilities of two (or more) Member States engaged in judicial or administrative cooperation. The AFSJ therefore opens up new avenues of interaction between national and EU law which challenge the traditional understanding of the scope of EU fundamental righthood. Moreover, the approach to the scope of EU fundamental rights in this field has key implications for the allocation of the power of review and the application of competing standards in national fundamental rights systems.3 Against this background, the purpose of this chapter is twofold. First, keeping in mind the variety and complexity of the themes covered by this compilation, it seeks to show how the competences and rules in the AFSJ expand the scope of EU fundamental rights. Second, this chapter seeks to identify the particularities of the AFSJ that are relevant to delineating the scope of the Charter. For these purposes, Section 1.2 will outline the regime governing the application of the Charter pursuant to its Article 51(1) and describe how this regime plays out in the AFSJ. Section 1.3 will then clarify the role of other criteria traditionally used to determine scope of application, such as territorial, personal and temporal considerations. After that, Section 1.4 will focus on some of the particularities affecting the determination of the scope of the Charter in the AFSJ. In Section 1.5, by way of conclusion, I suggest that the AFSJ is more than just an interesting field for testing the general limits of EU fundamental rights; it represents a specific area of law that has moved the Charter into a more central position in EU case law, thereby consolidating the role and identity of the CJEU as a guardian of fundamental rights.

3

At greater length, see Chapter 2.

The Scope of EU Fundamental Rights in the AFSJ

1.2 Originality of Scope: Article 51(1) of the Charter as an Autonomous Scope-Defining Rule Unlike other human and fundamental rights documents (be they international or constitutional in nature) that are designed for general application, the Charter is limited in its scope ratione materiae. The determination of whether a situation falls within the scope of the Charter is governed, almost exclusively, by Article 51(1). According to that provision, the scope of EU fundamental rights is defined in an autonomous way, on the basis of two related criteria: first, it is necessary to ascertain whether the authority involved belongs to the Union or to a Member State (institutional criterion); second, the connection between the situation or rule at issue and EU law must be identified (functional criterion). The regime applicable according to the second criterion will depend on the answer to the first criterion: whereas EU institutions, bodies and agencies are subject to the Charter with no functional limitation (Section 1.2.1), EU Member States are bound by it only when implementing EU law (Section 1.2.2). As a result of the combination of those criteria, the material scope of the Charter is dependent on the entity or entities involved and the normative connection between the situation or rule in question and EU law. Therefore, the material scope of the Charter is linked not only to competences or specific areas of law covered by the EU but also to the strength of the connection between a given normative situation and EU law. This set-up is a corollary of the way competences are divided between the EU and its Member States and is consistent with the CJEU’s past treatment of fundamental rights as general principles of law.4

1.2.1 Application of the Charter to EU Public Powers in the AFSJ The Charter is directed primarily at EU public powers, referred to in Article 51(1) as ‘EU institutions, bodies and agencies’. Bearing in mind that Member States were already subject to their own constitutional fundamental rights charters, as well as to the ECHR, the added value of the Charter lies above all in its codification of EU fundamental rights and explicit application to EU public powers. Previously, these public powers were bound only by a vague system of fundamental rights that were to be progressively applied and developed as general principles through judicial decisions. This preeminent focus on EU public powers is apparent from the very

4

This chapter uses ‘EU fundamental rights’ and ‘Charter rights’ interchangeably, it being assumed that, on the whole, the scope of application of the rights of the Charter corresponds to that of fundamental rights as EU general principles of law. That said, some general principles differ in scope from the Charter. On the principle of effective judicial protection in art 19(2) TEU, see Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117, paras 29, 37, 40.

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content of the Charter. The scope of several Charter rights is limited to EU institutions, bodies, offices and agencies. This is notably the case with the citizenship rights set forth in Articles 41 to 44 of the Charter.5 The Charter’s focus on EU public powers is also demonstrated by Article 51(1), which does not make the application of the Charter to those powers conditional on any functional criterion, as is the case with Member States, whose action comes within the scope of the Charter ‘only when they are implementing EU law’. EU public powers, by contrast, are always bound by the Charter. Regardless of the capacity in which they act and irrespective of whether they act within the limits of their attributed competences, their nature as EU public powers automatically brings them within the scope of the Charter. This is so even if they are serving as surrogates for other organisations or for Member States, or acting outside the powers that EU law bestows on them. As confirmed by the CJEU, ‘the Charter is addressed to EU institutions, including … when they act outside the EU legal framework’.6 As a consequence, even when EU institutions adopt acts outside the legal framework of the EU, which may place them beyond the Court’s jurisdiction in annulment proceedings,7 the measures taken by EU powers are always justiciable in an action for compensation for damages.8 The Charter has often been applied in the AFSJ as a parameter for assessing the validity and interpretation of acts of EU public powers. Significantly, it was in an AFSJ case that the Court first mentioned the Charter, at a time when it was not even in force. In Parliament v Council,9 the European Parliament initiated an annulment action contesting (unsuccessfully, as it happened) the compatibility of several aspects of the Family Reunification Directive10 with the right to family life. The Charter has also been used as a parameter for determining the legality of draft EU international agreements in the AFSJ, as when the Court found the draft agreement between Canada and the EU on the transfer and processing of passenger name record data to be incompatible with several Charter provisions.11

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9 10

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It is still unclear to what extent those rights can be extended to Member States via general principles. The right to good administration (art 41), or at least some aspects of it, have been extrapolated to the Member States. On this debate, see Case C-298/16 Ispas EU:C:2017:650, Opinion of AG Bobek, paras 77–91. In relation to acts adopted under the European Stability Mechanism, see Joined Cases C-8/15 P to C-10/15 P Ledra Advertising and Others v Commission and ECB EU:C:2016:701, para 67. Joined Cases C-105/15 P to C-109/15 P, Mallis and Others v Commission and ECB, EU:C:2016:702. Under TFEU arts 268 and 340. See Joined Cases C-8/15 P to C-10/15 P Ledra Advertising (n 6) para 55. Case C-540/03 Parliament v Council EU:C:2006:429. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12. Opinion 1/15 (EU-Canada PNR Agreement) EU:C:2017:592.

The Scope of EU Fundamental Rights in the AFSJ

It is notable, however, that most of the annulment procedures in the AFSJ have concerned the inter-institutional allocation of powers and the legal basis of related issues,12 as was already the case before the Charter’s entry into force.13 That said, some of those institutional cases involved an underlying layer of constitutional considerations concerning the appropriateness of the measures introduced by the democratic legislator given their impact on fundamental rights.14 Furthermore, the growing relevance of fundamental rights to annulment proceedings is also reflected in cases where Member States have attacked the validity of EU acts. In particular, the Charter has featured prominently in cases concerning the system of asylum quotas, where it has been relied on to uphold the validity of EU acts in the face of Member States’ arguments for their dismissal.15 In this context, national courts have uncontestably played a leading role in policing the conformity of EU acts with fundamental rights in the AFSJ. Through requests for preliminary rulings on the validity of EU acts, they have questioned the legality of legislative provisions such as those regulating the detention of foreign nationals in asylum laws;16 the conditions for revoking refugee status in light of Article 18 of the Charter;17 the compatibility of the European Arrest Warrant Framework Decision with the legality principle18 and with rules concerning procedures in absentia;19 and the obligation to take fingerprints of persons applying for passports.20 Although the cases mentioned did not result in any declaration of invalidity, the CJEU’s interpretation of the acts at issue have often been strongly worded in relation to fundamental rights, which suggests that the validity of those acts could be ‘saved’ only if they were interpreted in a manner that conformed with the Charter. The application of the Charter to EU public powers in the AFSJ has not, however, been free of controversy. First, the action of EU institutions and bodies in

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16 17 18 19 20

See eg Joined Cases C-317/13 and C-679/13 Parliament v Council EU:C:2015:223; Case C-43/12 Commission v Parliament and Council EU:C:2014:298; Case C-88/14 Commission v Parliament and Council EU:C:2015:499; Case C-595/14 Parliament v Council EU:C:2015:847. See eg Case C-176/03 Commission v Council EU:C:2005:542; C-257/01 Commission v Council EU:C:2005:25; Case C-133/06 Parliament v Council, EU:C:2008:257. See esp Case C-355/10 Parliament v Council EU:C:2012:516, paras 76, 77, regarding the provisions conferring powers of public authority on border guards. On the establishment of secondary legal bases for adopting a list of safe third countries in connection with EU asylum rules, see Case C-133/06 Parliament v Council EU:C:2008:257. See Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council EU:C:2017:631, para 305. See Cases C-18/16 K EU:C:2017:680; C-601/15 PPU N EU:C:2016:84. See Joined Cases C-391/16, C-77/17 and C-78/17 M and Others EU:C:2019:403. See Case C-303/05 Advocaten voor de Wereld EU:C:2007:261. See Case C-399/11 Melloni EU:C:2013:107. See Case C-291/12 Schwarz EU:C:2013:670.

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the AFSJ consists not only of law- and decision-making but also direct administration. A great number of EU agencies operate in the AFSJ.21 The allocation of responsibility between Member States and agencies is a much-debated question, particularly given the fact that agencies often act in coordination with or in support of actions of Member States. However uncertain this allocation may therefore be, Article 51(1) of the Charter nonetheless confirms in no uncertain terms that EU agencies have an obligation to abide by the Charter, no matter in what capacity they may be acting. This obligation has been given concrete expression in specific fundamental rights compliance mechanisms, particularly in the case of Frontex, an agency that requires heightened scrutiny due to the nature of its tasks, which include operational involvement in interceptions at sea.22 Second, the practice of outsourcing certain administrative tasks to private actors, in particular in the context of the common visa policy, further complicates the challenges of ensuring fundamental rights accountability.23 Third, given the political sensitivity of the action of Member States and EU institutions in the AFSJ, that action is susceptible to fall back on intergovernmental dynamics which could blur the legal nature of the acts and the fundamental rights responsibilities of EU and Member State public powers. This risk has materialised in the wrongly named ‘EU-Turkey’ deal concerning the agreement to resettle one Syrian refugee in a Member State for every person readmitted by Turkey under the terms of the agreement. Although the agreement was made public in an EU press release and it included references to the EU and members of the European Council, the General Court found that the authors of the statement were the heads of state and government, not the EU institutions. For that reason, the agreement did not involve an EU legal act and, as a result, escaped the jurisdiction of the Court in annulment proceedings.24

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See the report to the EP’s Committee on Civil Liberties, Justice and Home Affaires (LIBE): E Guild and others, ‘Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office’ (EP 2011) 43. The agency can be held liable and the CJEU has jurisdiction under art 60(4) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard [2016] OJ L251/1. There is a specific fundamental rights complaint mechanism in art 72. On this problematic topic, see eg M Fink, Frontex and Human Rights (OUP 2018). See F Mc Namara, ‘Externalised and Privatised Procedures of EU Migration Control and Border Management: A Study of EU Member State Control and Legal Responsibility’ (LLD thesis, European University Institute 2017). See Orders T-192/16 NF v European Council EU:T:2017:128; T-193/16 NG v European Council EU:T:2017:129; T-257/16 NM v European Council EU:T:2017:130; T-834/16 QC v European Council EU:T:2018:984. See Order in Joined Cases C-208/17 P to C-210/17 P, NF and Others v European Council EU:C:2018:705, dismissing the related appeals.

The Scope of EU Fundamental Rights in the AFSJ

1.2.2 Application of the Charter to Member States in the AFSJ Article 51(1) of the Charter stipulates that the Charter applies to Member States ‘only when they are implementing Union law’. Determining when Member States are implementing EU law has proved to be no easy task. Despite its apparent limpidity, the sentence ‘The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’,25 which conjures up an image of the Charter shadowing EU law,26 does not itself provide an answer, for it begs yet another question: when exactly does EU law apply? Article 51(1) of the Charter embodies one of the chief particularities and difficulties of the EU fundamental rights system: the dissociation between the way in which the scope of traditional EU law and that of EU fundamental rights is determined. EU fundamental rights are not self-triggering; they can apply only through a connection with another rule of EU law. Continuing with the metaphor just mentioned, ‘a shadow cannot cast its own shadow’, to use the words of Advocate Bobek.27 EU fundamental rights therefore do not constitute a complete or self-contained set of rules when it comes to determining their applicability to the Member States: their material scope of application remains dependent on another EU rule. Commentators have identified various situations in which EU law ‘applies’, meaning that EU fundamental rights do too. These situations are mainly linked to the nature of the relationship between the national legal rule or practice at issue and the rule of EU law.28 The traditional position was to consider EU fundamental rights as being applicable in two clear-cut cases: agency situations and derogation situations. However, that classification has become marked by the addition of several layers of complexity. To begin with, the agency situation is far from simple, since it covers instances of direct application, transposition,

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Case C-617/10 Åkerberg Fransson EU:C:2013:105, para 21. K Lenaerts and JA Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in S Peers and others (eds), The EU Charter of Fundamental Rights : A Commentary (CH Beck/Hart/ Nomos 2014) at 1568. Case C-298/16 Ispas EU:C:2017:650, Opinion of AG Bobek, para 30. From the abundant literature, see eg M Dougan, ‘Judicial Review of Member State Action under the General Principles and the Charter: Defining the “Scope of Union Law”’ (2015) 52 CMLRev 1201; X Groussot, L Pech and G Petursson, ‘The Scope of Application of Fundamental Rights on Member States’ Action: In Search of Certainty in EU Adjudication’ (2011) Eric Stein Working Paper 1/2011; E Hancox, ‘The Meaning of “Implementing” EU Law under Article 51(1) of the Charter: Åkerberg Fransson’ (2013) 50 CMLRev 1411; K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 EuConst 375; A Rosas, ‘The Applicability of the EU Charter of Fundamental Rights at National Level’ [2013] European Yearbook on Human Rights 97; M Safjan, D Düsterhaus and A Guérin, ‘La Charte des Droits Fondamentaux de l’Union Européenne et les Ordres Juridiques Nationaux: De la Mise en Œuvre à la Mise en Balance’ (2016) Revue Trimestrielle de Droit Européen 219; J Snell, ‘Fundamental Rights Review of National Measures: Nothing New under the Charter?’ (2015) 21 European Public Law 285.

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implementation, enforcement, remedies and procedural safeguards, as well as any other rule or practice that may collide directly (or even indirectly) with EU legal rules.29 Second, and relatedly, the scope of the Charter is no longer considered as a question of in or out, but rather as being dependent on the strength of the connection between a situation or rule and EU law.30 This approach has its roots in the two landmark judgments Åkerberg Fransson and Melloni, in which the CJEU established two basic principles for understanding the implications of the scope of EU fundamental rights. First, it confirmed the broad understanding of the notion of ‘implementing EU law’: the Charter applies when EU law applies.31 Second, the CJEU acknowledged that legal situations may have different intensities under EU law, meaning that Member States may in some situations retain authority to apply national standards of fundamental rights protection provided they uphold the primacy, unity and effectiveness of EU law when exercising that authority.32 It should be emphasised, now that the general system has been described, that the interpretation of AFSJ rules has greatly contributed to the refinement of case law on the scope of the Charter. First, the extraordinarily high number of cases in which the Charter has been applied in the AFSJ confirms that the AFSJ is the leading area for the jurisprudential development of EU fundamental rights. It is striking, however, that the majority of fundamental rights-related cases in the AFSJ do not explicitly discuss Article 51 or even the limitations of the Charter; rather, the applicability of the Charter is assumed.33 The obviousness of the connection of

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See D Sarmiento, ‘Who’s Afraid of the Charter? The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe’ (2013) 50 CMLRev 1267; S Pérez Fernandes, ‘Fundamental Rights at the Crossroads of EU Constitutionalism: Decoding the Member States’ Key(s) to the Charter’ (2018) 60 Revista de Derecho Comunitario Europeo 681. See the ‘lighthouse approach’ proposed in Case C-298/16 Ispas EU:C:2017:650, Opinion of AG Bobek, para 64: ‘[T]he closer to a specific and concrete EU law rule, the less discretion there is on the side of national law. Conversely, the further from the lighthouse, but still touched by its light …, the less of an intensive review there is.’ The issue of when EU law applies is of course complex, but is being progressively clarified by case law, which requires a degree of connection that goes beyond a mere thematic link. See eg Cases C-206/13 Siragusa EU:C:2014:126, para 24; C-198/13 Julián Hernández and Others EU:C:2014:2055, para 34. The Court also looks at indicative and non-exhaustive criteria: ‘whether the national legislation at issue is intended to implement a provision of EU law, what the character of that legislation is, and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting that law, and also whether there are specific rules of EU law on the matter or capable of affecting it’. See Case C-40/11 Iida EU:C:2012:691, para 79. Cases C-617/10 Åkerberg Fransson EU:C:2013:105, para 29 ; C-399/11 Melloni EU:C:2013:107, para 60. A quick search on the case law database of the CJEU at the time of writing shows that of the 662 judgments and orders that have the Charter since its entry into force, 146 involve the AFSJ. Of those, only 27 explicitly discuss Article 51.

The Scope of EU Fundamental Rights in the AFSJ

many aspects of the AFSJ with fundamental rights has thus helped to normalise the application of the Charter in areas previously considered to fall within the exclusive competence of Member States. Second, AFSJ case law has affected the general development of the jurisprudential approach to the Charter’s scope in several ways. Given the rather broad margin of discretion left to Member States in enforcing most of the AFSJ rules, the case law in this field has proved crucial in determining whether Member States are implementing EU law when an EU law rule affords them a margin of appreciation. In NS and Others, the CJEU clarified that Member States are implementing EU law when they exercise discretionary power conferred under an act of EU law.34 Such situations must be distinguished, however, from those in which Member States decide to grant additional or more favourable protection than the minimum provided in a directive. In a case involving social law, the CJEU recently ruled that the Charter does not apply in the latter situations.35 Third, AFSJ case law has been crucial in establishing the importance of taking account of the Charter when interpreting acts of EU law before going on to determine whether or not a given situation falls within its scope. This development became particularly apparent in Kamberaj, a case concerning the Long-Term Residents Directive.36 In this case, the Court referred to Article 34(3) of the Charter in order to determine the scope of the directive’s provision affording equal treatment to long-term residents in the fields of social security, social assistance and social protection.37 This approach shows how the Charter informs the interpretation of the content and scope of provisions of EU law. Criminal case law has since confirmed the Charter’s role when interpreting the scope of secondary law in the AFSJ ha. In Rayonna prokuratura Lom,38 a case concerning the interpretation of Directives 2012/13 and 2013/48,39 the CJEU declared that, although not explicitly mentioned in those directives, proceedings authorising committal to a psychiatric hospital could nevertheless be regarded as covered by the concept of ‘criminal proceedings’ within the meaning of those directives. In arriving at that conclusion, 34

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Joined Cases C-411/10 and C-493/10 NS and Others EU:C:2011:865, paras 65–69. On these cases, see Chapter 7. Joined Cases C-609/17 and C-610/17 TSN and AKT EU:C:2019:981. See also Case C-198/13 Julián Hernández and Others EU:C:2014:2055. Council Directive 2003/109/EC concerning the status of third-country nationals who are longterm residents [2004] OJ L16/44. Case C-571/10 Kamberaj EU:C:2012:23379, para 80. Case C-467/18 Rayonna prokuratura Lom EU:C:2019:765, para 46. Directive 2012/13/EU on the right to information in criminal proceedings [2012] OJ L142/1; Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1.

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the CJEU relied on the protection offered by Article 6 of the Charter, interpreted in accordance with Article 5 ECHR. The two aforementioned show how provisions of EU secondary law interpreted in the light of the Charter can themselves trigger Charter applicability, with the result that the Charter contributes to defining its own scope. This approach is not without its limits, however. The most salient case in this regard is X and X,40 concerning asylum applications for short-term visas under the Visa Code41 in cases where the applicants applied for asylum once inside the EU. In this case, the Court found that the situation at issue was not governed by EU law and therefore fell outside the scope of the Charter. The Court based its reasoning on the fact that those applications did not actually fall within the scope of the Visa Code, as they were not true applications for ‘short stays’. If such applications were allowed, it would be tantamount to allowing applications for visas in order to obtain international protection, which would undermine the general structure of the system of the Visa Code. Therefore, the Charter was not taken into account in interpreting the scope of the relevant provision of the Visa Code. This judgment subjects the scope of a provision to strict limits related to the object and legal basis of the act in which the provision is inserted and which cannot be ignored, even out of consideration for the Charter.42 Furthermore, the particular dynamics of the AFSJ, especially with regard to mutual cooperation and the regulation of certain procedural fundamental rights in areas not necessarily harmonised with respect to their substance, challenge the traditional understanding of the scope of Article 51 of the Charter. These dynamics will be analysed in Section 1.4. First, however, it is necessary to check whether the test of Article 51(1) of the Charter on its own provides a sufficient final answer on the issue of the scope of EU fundamental rights is necessary, for it is possible that additional elements must still be taken into account.

1.3

Entitlement, Territoriality, Temporality and Addressees: Secondary or Irrelevant?

Although Article 51(1) lays down a basic test for determining the scope of the Charter, certain questions remain unanswered. Do all fundamental rights have the same scope? What role, if any, do factors (eg personal, temporal, territorial)

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Case C-638/16 PPU X and X EU:C:2017:173. Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L243/1), as amended. For a critical view, see Chapter 7.

The Scope of EU Fundamental Rights in the AFSJ

traditionally used to determine the scope of legal instruments have in this context? Who are the addressees of the obligations imposed by EU fundamental rights? While some of these questions are answered by other provisions of the Charter, the answers to others are not immediately obvious.

1.3.1

Rights-Dependent Scope?

The functional criterion laid down in Article 51(1) of the Charter is ultimately not decisive in determining the applicability of every Charter right. Some provisions of the Charter add other factors that delimit its scope of application or introduce a different functional criterion that modulates the general understanding of Article 51(1) with regard to a given right. This is clearly the case with the citizenship rights in Articles 41–44, which cover only the direct relations between citizens and EU institutions, bodies, offices and agencies. Article 47 is also a case in point. This provision grants everyone ‘whose rights and freedoms guaranteed by the law of the Union’ are violated the right to an effective remedy and a fair trial.43 This wording does not entirely square with the boundaries of Article 51(1), as it focuses on the subject of the litigation (rights or freedoms under EU law), as the question of whether a right or freedom follows from EU law (or falls within its scope) may be precisely the matter at issue in judicial proceedings.44 Rather than setting a test of applicability distinct from that of Article 51(1), these additional criteria may be regarded as indications of how the ‘implementation of EU law’ must be assessed in the context of the fundamental right in question.

1.3.2

Personal Scope: Who Is ‘Entitled’?

Who is entitled to the protection of the Charter? Its provisions themselves often answer this question with a rather sweeping assertion: everybody. Generally speaking, EU fundamental rights are not limited to EU citizens (and rightly so).45 Put another way, the Charter’s protection is not triggered by nationality or personal status, but rather through the complex assessment resulting from Article 51(1). In other words, when the scope of an act of EU law that triggers the application of EU fundamental rights is limited in terms of those to whom it applies, the fundamental rights protection will be similarly limited in scope. This is particularly evident in the field of the AFSJ. For example, legal provisions on free movement apply only to EU citizens and members of their families,

43 44 45

For other examples of the operation of art 47 in the civil cooperation field, see Chapter 11. On this debate, see C-403/16 El Hassani EU:C:2017:659, Opinion of AG Bobek, paras 74–85. S Iglesias Sánchez, ‘Fundamental Rights and the Citizenship of the Union at the Crossroads: A Promising Alliance or a Dangerous Liaison?’ (2014) 4 ELJ 464.

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whereas rules of EU immigration and asylum law apply to persons eligible for immigration or asylum – that is, generally, third-country nationals. The only limitations directly imposed by the Charter on grounds of nationality concern very specific citizenship rights and the right to free movement within the EU.46 It therefore appears safe to conclude that, apart from where specific Charter rights delimit personal scope, the Charter does not rely on any personal criteria and its scope ratione personae is therefore equivalent to that of the rule of EU law that triggered the Charter’s application in the first place.

1.3.3 Territoriality Because of the strong territorial connotation of the word ‘area’ in the name AFSJ, the territorial scope of the Charter is of particular interest. However, traditional considerations linked to territoriality are not essential to determining whether the Charter is applicable in a given situation. The issue of the potential territorial limitations of the Charter was addressed at length in the opinion of Advocate General Mengozzi in X and X.47 The case concerned applications for humanitarian visas under the EU Visa Code by Syrian nationals who had sought refuge in the embassies of a Member State in third countries. The Member State concerned objected to the competence of the CJEU, claiming that the diplomatic mission was located outside the EU and that the ECHR’s territorial limitations should also apply to the Charter according to its Article 52(3).48 This position was not unprecedented in national case law in other jurisdictions. It was explicitly adopted by the High Court of England and Wales, for example, in R (Zagorski and Baze) v Secretary of State for Business, Innovation and Skills.49 In X and X, however, the Advocate General convincingly explained that the guarantees of the Charter apply irrespective of any condition of territoriality, provided the Article 51(1) test is met. The CJEU did not explicitly address this issue in its judgment,50 and it did not follow the Advocate General in the substance of its decision. However, the fact that the approach it took to the question of the Charter’s application did not rely on the territorial argument, but focused exclusively on the autonomous Article 51 test, can be seen as an implicit confirmation of the irrelevance of territoriality.51

46 47 48 50 51

See arts 15(2)–(3), 39, 40, 45, 46. Art 34(2) limits social security entitlement to legal residents. Case C-638/16 PPU X and X EU:C:2017:93, Opinion of AG Mengozzi. 49 ibid paras 89–101. [2010] EWHC 3110 (admin). Case C-638/16 PPU, X and X EU:C:2017:173. See V Moreno-Lax and C Costello, ‘The Extraterritorial Application of the Charter: From Territoriality to Facticity, the Effectiveness Model’ in S Peers and others (eds), The EU Charter of Fundamental Rights: A Commentary (CH Beck/Hart/Nomos 2014).

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1.3.4 Temporality Generally speaking, the Court started referring to the Charter as soon as it entered into force, and began applying it to facts brought before it after that moment. However, given the material overlap between the content of Charter rights and fundamental rights as general principles of law, attempting to pinpoint a strict cut-off date would be unnecessarily formalistic. Indeed, as acknowledged by the CJEU in Paoletti, even before the entry into force of the Treaty of Lisbon, the Court had held that fundamental rights, including, for the purposes of that case, the principle of legality, followed from the common constitutional traditions of the Member States and were part of the general principles of EU law. For that reason, it held that cases involving facts predating 1 December 2009 did not necessarily preclude the applicability of the Charter.52 However, the temporal applicability of the Charter does not depend only on its own temporal scope; what is even more relevant is the link between the temporal scope of application of EU fundamental rights and the temporal application of the rule that triggered the application of the Charter in the first place. As many of the rules in the AFSJ (mostly in the fields of migration, asylum and criminal cooperation) are directives, it is important to recall the case law concerning the so-called advanced effect of directives, which is a particular manifestation of the principle of sincere cooperation. Where there is a serious risk that Member States’ measures will compromise the result prescribed by a directive (or, arguably, by a framework decision), a directive can deploy so-called advanced effects to override the national rules even before the directive’s transposition date. The possibility of recourse to such effects in the AFSJ, and even in the field of criminal law, has been confirmed by recent case law,53 which means that the effects of the Charter may conceivably also be deployed before the transposition date, arguably at least when the provisions in question benefit the defendant.54

1.3.5

Summary

The above considerations lead to the conclusion that the crucial rule for determining the scope of the Charter lies in the Charter itself – namely, first and foremost its Article 51, which binds the scope and applicability of the Charter to other EU legal measures. However, additional stipulations concerning the specific scope of a given fundamental right or the persons entitled to its protection may be found elsewhere in the Charter. 52 53

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Case C-218/15 Paoletti e.a. EU:C:2016:748, paras 25–26. Regarding Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1, see Case C-439/16 PPU Milev EU:C:2016:818. Case C-439/16 PPU Milev EU:C:2016:760, Opinion of AG Bobek, paras 51–52.

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1.4

Expanding the Scope? Challenges Posed by the AFSJ as a Test Scenario

Two particularly salient developments illustrate the transformative role of the AFSJ with regard to the scope of application of EU fundamental rights. First, the dynamics of mutual recognition and mutual trust impose vicarious fundamental rights liability on Member States for potential violations by other Member States. The implications of that dynamic do not always fit easily within the confines of Article 51(1) of the Charter (Section 1.4.1). Second, especially in the field of procedural criminal law, secondary law has been adopted to establish a minimum threshold of fundamental procedural guarantees that substantively overlaps with some of the procedural rights of the Charter. How the limits of Article 51(1) of the Charter may operate under such conditions has also proved to be problematic (Section 1.4.2).

1.4.1 The Scope of Fundamental Rights as Exceptions to Mutual Recognition One of the major developments in the field of fundamental rights since the entry into force of the Charter has been the acknowledgement of exceptions to mutual recognition and mutual trust on the basis of fundamental rights. McB, the first case to mention Article 51 of the Charter, tellingly expressed concern over the problematic opening-up of the scope of EU law brought about by mutual cooperation instruments. In that case, the CJEU carefully cabined its answer by pointing out that ‘the Charter should be taken into consideration solely for the purposes of interpreting Regulation No 2201/2003, and there should be no assessment of national law as such’.55 No such provisos are found in subsequent case law. The cases that have come before the CJEU predominantly concern questions posed by the courts of Member States when asked either to comply with requests (eg with a European arrest warrant)56 or to trust in another Member State to which they were to send an asylum seeker under the Dublin system.57 In both cases, if a person is to be sent to another Member State in which their fundamental rights risk being violated, the CJEU

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Case C-400/10 PPU McB EU:C:2010:582. Joined Cases C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Ca˘lda˘raru EU:C:2016:198; Case C-128/18 Dorobantu EU:C:2019:857; Case C-220/18 PPU Generalstaatsanwaltschaft EU:C:2018:589 (conditions of detention in Hungary); Case C-216/18 PPU Minister for Justice and Equality EU:C:2018:586 (deficiencies in the system of justice). On this case law, see Chapter 13. In the field of asylum, see Joined Cases C-411/10 and C-493/10, NS and Others, EU:C:2011:865; Case C-578/16 PPU CK EU:C:2017:127, para 95; Case C-163/17 Jawo EU:C:2019:218, paras 90–92. On the material implications of this case law, see Chapters 4 and 8.

The Scope of EU Fundamental Rights in the AFSJ

has admitted that fundamental rights considerations (so far linked to Articles 4 and 47 of the Charter) may lead to an exception in specific and well-defined circumstances. In this context, the paradoxical effect of Article 51(1) of the Charter is that the implementation of a mutual recognition instrument opens up the scope of the Charter (and the jurisdiction of the Court) as a result of the need to check for any kind of fundamental rights issues raised in the issuing Member state (or destination Member State). Admittedly, strict requirements related to the fundamental rights affected and to the seriousness or systematic character of the situation may need to be met for there to an actual violation or risk justifying the derogation from the principles of mutual trust and mutual recognition. However, that forms part of the assessment on the merits, which appears to fall squarely within the scope of EU law, no matter how far removed those situations (eg conditions of imprisonment) may be from an EU rule determining a specific rule of conduct or obligation. This crucial development has implications for the scope of EU law. EU fundamental rights standards become applicable whenever a national rule or situation might affect the application of mutual trust and mutual recognition instruments. So far, this has been applied only in relation to the obligations of the executing Member State; however, rules the originating Member State’s national law that could impact on the application of those mutual cooperation regimes have also been considered to fall within the scope of the Charter in the past.58 In this context, the technique of assessing fundamental rights breaches through the lens of mutual recognition may create a ‘virtuous’ circle fostering the informal harmonisation of standards, often outside the competences of the Union. In this way, the pitfalls of mutual trust as a harmonisation technique may be remedied to a certain extent through an indirect quid pro quo approach that enhances the role of fundamental rights as a requirement for mutual trust. This dynamic could even go as far as enabling the Commission to use the principle of sincere cooperation to launch infringement proceedings for systemic or particularly serious violations of fundamental rights that might endanger the functioning of the AFSJ.59

1.4.2 The Overlapping Content of Fundamental Rights and Secondary Law Even though not exclusive to the AFSJ, the phenomenon of overlapping fundamental rights and rules of EU secondary law has recently acquired particular salience with the adoption of various procedural rights directives in the field of 58 59

See eg Case C-400/10 PPU McB EU:C:2010:582. In relation to art 19(1) TEU, see Cases C-619/18 Commission v Poland EU:C:2019:531 (independence of the Supreme Court); C-192/18 Commission v Poland EU:C:2019:924 (independence of ordinary courts).

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criminal law.60 Those directives introduce a minimum degree of harmonisation in criminal procedural law, regardless of other connections with EU law (such as free movement or the harmonisation of substantive criminal rules). As a result, the potential impact of those acts of secondary law have considerable potential to enlarge the scope of application of EU fundamental rights is considerable, bearing in mind that, as pointed out in Section 1.2.2, the Charter plays a part in defining its own scope by inspiring the interpretation of acts of EU secondary law. The risk of an explosion of scope-enlarging effects can be appreciated, for example, by contemplating the potential impact that Article 48 of the Charter could have on the interpretation of the directive on the presumption of innocence.61 The CJEU seems to have nipped in the bud that risk before it actually materialised. In recent cases focusing on specific provisions of the directives in the field of procedural rights in criminal procedures, it has scrutinised at the micro-level whether the specific obligations or rules at issue can be traced back directly to the obligations contained in the provisions of a rule of EU law, emphasising the fact that directives in the field of criminal procedural law are aimed at no more than minimal harmonisation. This is leading to an increasingly strict interpretation of the scope of the different provisions of directives whose content overlaps with fundamental rights. This trend has yet to be confirmed, however, as not all cases take the same approach. In Spetsializirana prokuratura,62 for example, the Court found that Article 6 of the directive on certain aspects of the presumption of innocence63 does not cover the issue of the burden of proof with regard to the continuation of detention on remand pending trial. Similarly, in QR,64 the CJEU honed in on the content of Article 7(4) of that directive, concluding that this provision did not govern the issue of whether or not the consent of other accused persons could be required for a court to approve an agreement for a negotiated sentence. The CJEU emphasised that EU law does not impose an obligation on Member States to allow judicial authorities to take the cooperative behaviour of suspects and accused persons into account, so the consent requirement could not be regarded as implementing Union law. In those cases, the Charter does not serve as a tool for interpreting the scope of the obligations imposed by the directive. Rather, its consideration is secondary: if the

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For a full account, see Chapter 15. See Case C-646/17 Moro EU:C:2019:95, Opinion of AG Bobek, paras 82 et seq. Case C-653/19 PPU Spetsializirana prokuratura EU:C:2019:1024. Dir 2016/343/EU (n 53). Order C-467/19 PPU, QR EU:C:2019:776, concerning the interpretation of Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L 65/1.

The Scope of EU Fundamental Rights in the AFSJ

particular EU law provision is found to be inapplicable, then the Charter does not apply. Here, the scope of the Charter is examined in the light what case law has identified as one of the central elements for its application: the existence of an EU law imposing an obligation. This methodology seems to contrast with the approach followed by the CJEU in other cases related, for example, to Directive 2012/13/EU on the right to information in criminal proceedings. In both Moro65 and Rayonna prokuratura Lom,66 in order to determine the scope of the relevant provisions of the directive, the Court interpreted them in the light of the Charter. In Moro, in particular, when identifying the content of the obligations imposed by the directive, the CJEU took account of the non-regression obligation with regard to the protection offered by the ECHR. Despite concluding that the pertinent provisions of the directive did not impose a concrete obligation,67 the Court considered the case as falling within the scope of EU law and undertook a separate examination under Article 48(2) of the Charter.68

1.5 Concluding Remarks As a result of the heightened growth in AFSJ-related litigation, the CJEU has had to deal with more and more cases touching on fundamental rights in this field. This chapter has shown how legal problems arising in the AFSJ have helped to clarify the general scope of the Charter, with regard to both EU public powers and to Member States. The AFSJ is not merely a testing ground, however, for EU fundamental rights. It is also an engine for dynamic development due to two features: (1) the pre-eminence of mutual trust and mutual recognition as core principles and (2) the enhanced fundamental rights ‘flavour’ of many of the EU rules in the AFSJ. Besides the challenges those two features raise with regard to the applicable standard of fundamental rights, which will emerge in the various contributions to this volume, the Charter’s very scope is put under pressure by the continual development of the AFSJ. As a result of the particular dynamics embedded in this field of law, as examined in this chapter, the Charter operates in conditions and scenarios significantly different from other, traditional spheres of EU law. The implications of the principle of mutual trust and recognition for triggering the application of the Charter and the jurisdiction of the CJEU when it comes to

65 66 67

Case C-646/17 Moro EU:C:2019:489. Case C-467/18 Rayonna prokuratura Lom EU:C:2019:765. 68 Case C-646/17 Moro EU:C:2019:489, para 65. ibid para 68.

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assessing fundamental rights standards in other (requesting or executing) Member States are still far from clear. The precise extent to which fundamental rights limit those principles has yet to be fixed. In that context, the scope of the fundamental rights issues that come within the purview of the CJEU are technically unrestricted, as every allegation of a potential fundamental rights violation seems to be captured by the notion of implementation when Member States are acting on their obligations of mutual trust and recognition. Furthermore, in relation to the directives concretising certain aspects of fundamental procedural rights in the field of criminal law, it has proved difficult not to fall into an ever-expanding circular logic that conflates the content of the fundamental right with the obligations flowing from the directive. The different methodologies adopted by the CJEU seem at present to oscillate between, on the one hand, a strict approach that relies on the content of the act of secondary law before looking at the Charter and, on the other, a more flexible approach that uses the Charter as a preliminary means of determining the scope of the acts of secondary law. These two examples illustrate the tension between the limited scope of application of the Charter and the expansive force of an area fraught with fundamental rights concerns. It has given rise to an increasingly rich body of CJEU case law, for the AFSJ opens up the entire catalogue of fundamental rights, consolidating the CJEU’s position as, among other functions, a fundamental rights court.

2

A European Standard of Human Rights Protection? MARIBEL GONZÁLEZ PASCUAL

2.1 Introduction The coexistence of several human rights charters within the EU poses a significant challenge for both the EU and the national constitutions. On the one hand, the risk of overlap, and even contradiction, between the legal instruments is particularly troublesome, because it could impair the protection of fundamental rights. On the other hand, fundamental rights ‘reflect the choices of a society as regards the proper balance to be achieved between the interests of individuals and those of the community to which they belong’.1 In fact, supreme and constitutional courts treat national standards of fundamental rights as part of a country’s constitutional identity, which the EU must respect.2 The Charter of Fundamental Rights of the EU (the Charter) is not oblivious of these tensions and risks. Article 53 embodies a non-regression clause maintaining the human rights protection guaranteed by both national constitutions and international treaties ratified by Member States, particularly the European Convention on Human Rights (ECHR). Such a provision is typical of human rights treaties, but its effect is essentially symbolic, as it simply conveys the message that the Charter does not displace existing human rights protections.3 The need to avoid tensions between different layers of human rights protection is also reflected in other provisions, not only of the Charter but also of the EU’s founding treaties (the Treaties). For example, Article 52 of the Charter seeks to avoid the risk of discordance between the Charter, the ECHR and the national constitutions, while Articles 6 and 4 of the Treaty on the EU (TEU) pay particular attention to the need to carve out a system for the protection of fundamental rights in accordance with the composite nature of the EU. Furthermore, the

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Case C-399/11 Melloni EU:C:2012:600, Opinion of AG Bot, para 108. M Claes, ‘National Identity: Trump Card or Apt for Negotiation?’ in A Saiz Arnaiz and C Alcoberro Llivina (eds), National Constitutional Identity and European Integration (Intersentia 2013) 124–30. B de Witte, ‘Article 53 – Level of Protection’ in S Peers and others (eds), The EU Charter of Fundamental Rights: A Commentary (Beck/Hart 2014).

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Charter Explanations4 paved the way for consistency in the application of the Charter and the ECHR within the EU by equating several Charter rights with ECHR rights. In Article 67, the first of its provisions on the Area of Freedom, Security and Justice (AFSJ), the Treaty on the Functioning of the EU (TFEU) unsurprisingly highlights the need to respect ‘fundamental rights and the different legal systems and traditions of the Member States’. Thus, the Treaties provide an avenue for dialogue and cooperation towards establishing common human rights standards within the EU through the incorporation of parameters and criteria developed in the different legal systems.5 Even the insistence on upholding existing standards facilitates such cooperation by setting a high threshold of success for legal actions initiated in one legal order against acts from another legal order.6 Nonetheless, the coexistence of several layers of fundamental rights with different goals, plus procedures for protecting fundamental rights in the courts that differ in scope, makes for a particularly complex situation,7 and all the more so in the case of the AFSJ given that it raises particularly sensitive issues for fundamental rights. Furthermore, the principle of mutual recognition principle requires that decisions taken in one Member State be recognised and executed in any other Member State based on the basis of a presumedly sufficient level of fundamental rights protection in all Members States. This presumption has spurred heated debate among scholars, and the question of whether and when the execution of mutual recognition instruments could be refused on fundamental rights grounds has been particularly salient within the EU. Thus, the protection of fundamental rights within the EU poses at least two new challenges in the light of the AFSJ. First, the AFSJ impacts upon fundamental rights, as it is necessary for EU rules to provide for adequate fundamental rights

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‘Explanations relating to the Charter of Fundamental Rights’ [2007] OJ C303/17. The CJEU relies particularly on the ECHR not only because the ECHR’s role in protecting human rights in Europe is explicitly affirmed in the Treaties, but also because doing so is essential ‘not only to minimise the risk of conflicts, but also to begin a process of informal construction of a European area of protection of fundamental rights’. Case C-465/07 Elgafaji EU:C:2008:479, Opinion of AG Maduro, para 22. Obviously, the case law of the ECtHR is a starting point for the CJEU when dealing with rights enshrined in the ECHR. The CJEU has also taken into account other international human rights treaties, such as the Convention on the Elimination of Torture or the Geneva Conventions, but the prominence of the ECHR is undeniable. National constitutions, on the other hand, are left aside and do not play any obvious role in the case law of the CJEU. De Witte (n 3) 1531. A von Bogdandy and L Spieker, ‘Countering the Judicial Silencing of Critics: Article 2 TEU Values, Criminal Liability and Reverse Solange’, (2019) MPIL Research Paper 2019-08. One that has even been compared to the Bermuda Triangle given the difficulties created by differences between the CJEU, the ECtHR and constitutional courts; see J Bergmann, ‘Diener Drei Herren? Der Instanzrichter zwischen BVerfG, EuGH und EGMR’ [2006] Europarecht 101, 114.

A European Standard of Human Rights Protection?

protection. However, attempts by the EU to introduce legislative developments reflecting the Charter generally meet with resistance from Member States, which make further progress conditional upon compromise.8 Also, if Member States’ own protection of fundamental rights is challenged, national courts may be tempted to disregard EU law in favour of domestic legislation.9 Second, the AFSJ requires Member States to take a leap of faith and accept, on the sole basis of the mutual trust between judicial authorities, that the protection of fundamental rights is sufficient throughout the EU. Domestic courts are thus expected to believe that equivalent and effective fundamental rights protection exists in each and every Member State not only in theory but also in practice. Against this background, the present chapter examines the contribution of the Court of Justice of the EU (CJEU) towards a European standard of fundamental rights in the AFSJ. The chapter begins by examining whether the CJEU is creating a level of fundamental rights protection that is sufficient to provide a basis for cooperation among the Member States without impinging upon domestic standards of fundamental rights. The chapter then discusses how this standard is adapted to facilitate horizontal cooperation in a scenario of mutual trust.

2.2 The Growing Protection of Fundamental Rights within the AFSJ: A Task for the EU The debate over the protection of fundamental rights within the AFSJ has been particularly heated in criminal matters, as it was feared at national level that it would lead to a decline in domestic fundamental rights protection. This has been exemplified in cases related to the transposition of the framework decision on the European arrest warrant (EAW), with both courts and legislators invoking higher domestic fundamental rights standards as grounds for refusing EAWs.10 These refusals, however, were explicitly overturned by the CJEU in Melloni. According to the CJEU, if the EU has harmonised the standard of protection of a given right, then national laws, including national constitutions, must not cast doubt on the uniformity of the standard since doing so would compromise the

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D Leczykiewicz, ‘Human Rights and the Area of Freedom, Security and Justice’ in M Fletcher, E Herlin-Karnell and C Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2016) 59. As the so-called Taricco saga illustrates, ignoring national standards on fundamental rights comes with a price. On this controversy, see Chapter 17. See the general report of V Mitsilegas, ‘The Area of Freedom, Security and Justice from Amsterdam to Lisbon: Challenges of Implementation, Constitutionality and Fundamental Rights’ and the country reports in J Laffranque (ed), Reports of the XXV FIDE Congress (2012) vol 3.

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efficacy of EU law.11 Therefore, domestic courts could not rely on their own standards of fundamental rights protection if it meant failing to apply EU law. In a nutshell, Article 53 of the Charter forbids the disapplication of ‘EU legal rules which are in fully compliance with the Charter’ even if applying the EU rules ‘infringes the fundamental rights guaranteed by that State’s constitution’.12 This reading of Article 53 of the Charter apparently focused on ensuring the effectiveness of EU law rather than on fundamental rights issues, provoking deep unrest in several constitutional courts.13 Yet the CJEU also pointed out that the framework decision complied with Articles 47 and 48(2) of the Charter, which were themselves in keeping with ‘the scope that has been recognised for the rights guaranteed by Article 6(1) and (3) of the ECHR by the case law of the ECtHR’.14 Thus, the Court stressed both the authority of EU law and its capacity to promote fundamental rights protection. Indeed, if the EU failed to maintain the level of fundamental rights protection already established at national level, Member States would be more resistant to the AFSJ. Furthermore, because the principle of mutual recognition relied on a presumption of sufficient fundamental rights protection throughout the EU, that protection had to be effective as in many cases it alone would have binding force. These tensions have led to case law that is extremely nuanced and complex in terms of the protection of fundamental rights within the EU. It appears that the CJEU has tried to strike a balance between the need to protect fundamental rights in the EU and the resistance of the Member States to any expansion of EU powers in the AFSJ. This explains why CJEU case law reflects the contradictions that persist within the EU: fundamental rights are in dire need of protection in the AFSJ, yet Member States resist further integration in this area. In these circumstances, the CJEU has opted to rely on general principles of EU law or on secondary law rather than directly on the Charter.

2.2.1 The Preference for General Principles as Illustrated by the Right to Family Life This approach by the Court was made clear in the well-known Kozłowski, Wolzenburg, IB and Lopes Da Silva judgments15 on the right to family life in criminal matters.16 The core of the controversies lay in Article 4(6) of the framework

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Case C-399/11 Melloni EU:C:2013:107, para 63. ibid para 58. See L Besselink, ‘The Parameters of Constitutional Conflict After Melloni’ (2014) 39 ELRev 531. Case C-399/11 Melloni (n 11) para 50. Case C-66/08 Kozłowski EU:C:2008:437; Case C-123/08 Wolzenburg EU:C:2009:616; Case C-306/09 IB EU:C:2010:626; Case C-42/11 Da Silva EU:C:2012:517. On these cases, see Chapter 20. In cases relating to the right to family life in the field of migration, the CJEU has also tended to rely on general principles, avoiding engagement with the Charter. On this case law, see Chapter 6.

A European Standard of Human Rights Protection?

decision on the EAW. Several domestic laws transposing this provision saw it as a means of protecting their own citizens, whose surrender would be conditional on their remaining in custody in their own country. At the same time, they also limited its scope or even neglected to apply it when the person to be surrendered was foreign. The Advocate Generals severely criticised such domestic legal provisions. In their view, this privileged treatment of nationals was not supported by the framework decision, which was intended for domestic judges, not legislators.17 The CJEU, however, took a slightly different approach by applying the non-discrimination principle among EU citizens enshrined in Article 18 TFEU. Briefly put, the CJEU allowed Member States to protect their own nationals but forbade them to disregard the rights of citizens of other Member States’. Although understandable,18 the CJEU’s cautious approach in these cases, raises four problematic issues. First, the Advocate Generals’ reasoning was rooted in the protection of fundamental rights as the crucial element of EU citizenship, whereas Member States seem to advance nationality as the touchstone of EU citizenship. Their understanding is reinforced by the CJEU through its acceptance of nationality as a privileged parameter in the framework of the EAW.19 Second, since the protection afforded to non-nationals seems limited to EU citizens, it might leave third-country nationals unprotected. Third, the non-discrimination principle does not imply protection of the right to family life per se. If a Member State decides not to lay down conditions for the surrender of a person subject to an EAW, the non-discrimination principle is not violated, yet the right to family life might be.20 Last but not least, the right to family life has been linked to the rehabilitation and reintegration of the person convicted, which this case law has overlooked by focusing on the prevention of impunity without concerning itself with the fundamental rights involved in the case.21

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Case C-66/08 Kozłowski EU:C:2008:253, Opinion of AG Bot, para 47. It should not be forgotten that several national laws transposing the EAW framework decision were challenged before constitutional courts precisely because they provided for the surrender of the country’s own nationals. The first CJEU judgment relating to Article 4(6) of the framework decision, Kozłowski, concerned the German transposing law, which was approved following a judgment of the German Federal Constitutional Court that called for better legislative protection of German nationals in the transposing law. C 306/09 IB EU:C:2010:404, Opinion of AG Cruz Villalón, para 44. This was the subject of the dispute in F-K (FC) v Polish Judicial Authority [2012] UKSC 25. The protection of convicts’ right to family life has also proven to be particularly problematic; see Cases C-514/17 Sut EU:C:2018:1016; C-554/14 Ognyanov I EU:C:2016:835. On this case law, see M González Pascual, ‘La Creciente Irrelevancia de la Reinserción Social en la Unión Europea, una Consecuencia no Buscada de la Cooperación Judicial en el ámbito Penal’ (2020) 40 Revista Española de Derecho Constitucional 167.

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Therefore, even though the protection of a right may be guaranteed by relying on general principles, such an outcome is not straightforward in every case. The CJEU can in many cases guarantee the fundamental right without even mentioning the Charter. The Charter provides an exhaustive, nuanced and consistent framework aimed at guaranteeing fundamental rights, whereas general principles provide a weaker tool for protecting fundamental rights. Thus, even though general principles are often less controversial, the CJEU should engage with the Charter when dealing with fundamental rights.

2.2.2

Secondary Law as Leverage to Foster EU Protection of Fundamental Rights

The Court has widened the protection of fundamental rights also by relying on the secondary law, as shown by its decisions following the reform of the Dublin system. The EU legislature’s wish to strengthen the rights of asylum applicants has been influential in CJEU case law concerning the right of asylum seekers to an effective remedy.22 The Court’s reasoning shows that it prefers to leave the leading role to the EU legislator. In CJEU case law the protection of fundamental rights is stronger when it is grounded in secondary law, as opposed to being derived directly from the Charter. The CJEU adopts a more nuanced position, however, on the directives relating to procedural rights in criminal matters.23 Indeed, it seems to promote a generous understanding of the scope of Charter procedural rights by extending the application of the directives to domestic situations in non-transnational cases.24 By contrast, it has shunned a reading of the directives that would expand the reach of procedural rights by insisting on their nature as minimum common rules. Covaci bears witness to this restrictive reading of the directives’ provisions. Mr Covaci was driving a car in Germany without valid civil liability insurance, and the insurance documentation that he produced was forged. The public prosecutor requested that the court fine Mr Covaci and maintained that the culprit could appeal against the decision, though he would need to do so in writing and in German. The magistrates’ court in Laufen then asked the CJEU whether the provision imposing this requirement was in conformity with Directive 2010/64 on the right to interpretation and translation in criminal proceedings. The CJEU reminded the magistrates court that the directives on procedural rights establish only a minimum of rules to serve as a foundation for mutual trust. According to the terms of Directive 2010/64, Mr Covaci was entitled to an

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Case C-63/15 Ghezelbash EU:C:2016:409, para 46. For a complete account of those instruments, see Chapter 15. Cases C-646/17 Moro EU:C:2019:489; C-467/18 Rayonna prokuratura EU:C:2019:765.

A European Standard of Human Rights Protection?

interpreter if he challenged the fine orally or if he was assisted by a legal counsellor. If he challenged the fine in writing, however, he had no entitlement to translation services, because the directive provides that Member States must translate essential documents drawn up by the authorities but not the documents drawn up by the parties. Requiring Member States systematically to take responsibility for the translation ‘of every appeal brought by the persons concerned against a judicial decision which is addressed to them would go beyond the objectives pursued by the Directive 2010/64 itself’.25 The Advocate General pointed out, however, that the directive had to be interpreted coherently. It was not logical for Mr Covaci to receive assistance from an interpreter if he challenged the decision orally or was assisted by a legal counsellor, but not if he wanted to challenge it on his own and in writing. In the Advocate General’s view, the directive was intended to strengthen the rights of individuals in criminal proceedings and this purpose had to be taken into consideration when filling any gaps in its provisions.26 The Court’s and the Advocate General’s positions reflect two different conceptions of Article 82 TFEU. The CJEU understood this article as implying that the directive’s provisions could be completed at will by Member States, whereas the Advocate General regarded the directive’s provisions as essential rules that had to be applied to the letter in criminal proceedings.27 Although the Advocate General’s reasoning was coherent, Member States were more likely to prefer the CJEU’s approach because of the difficulties that had emerged in the negotiations related to the directives on procedural rights in criminal matters. In a similar vein, the CJEU reduced the scope of Directive 2016/343 on the presumption of innocence by ruling out an expansive interpretation of this right in cases concerning the right to liberty.28 In Milev, the CJEU held that it was for national law alone to define the conditions under which a decision on pre-trial detention could be taken.29 The Advocate General, however, considered that there was a clear link between the right to liberty and the right to the presumption of innocence,30 and that this link offered a means of overcoming the troublesome

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Case C-216/14 Covaci EU:C:2015:686, para 38. Case C-216/14 Covaci EU:C:2015:305, Opinion of AG Bot, para 54. ‘The expression “minimum rules”, to which I personally prefer the expression “non-derogable rules”, must not be interpreted, as is too often the case, and not without ulterior motives, in a simplistic manner as referring to minor rules. As has just been explained, they are in fact an essential foundation for procedural principles which, in criminal proceedings, ensure the application of and respect for fundamental rights which are the underlying shared values that make the European Union a system founded on the rule of law.’ Case C-216/14 Covaci EU:C:2015:305, Opinion of AG Bot, para 32. 29 On this case, see Chapter 14. Case C-310/18 PPU Milev EU:C:2018:732, para 34. Case C-310/18 PPU Milev ECLI:EU:C:2018:645, Opinion of AG Wathelet, para 76.

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shortcomings in the protection of the right to liberty in pre-trial cases. The CJEU similarly avoided applying the Charter in Spetsializarnaa prokuratura and other cases concerning the directives on procedural rights in criminal matters.31 It thus appears that the CJEU was aware of the potential reach of the right on the presumption of innocence and attempted to pre-empt an expansive reading of that right. This case law is in line with the margin of discretion that EU law grants to Member States in criminal law.32 Besides, the directives on procedural rights contain a non-regression clause confirming the need to maintain national standards.33 Case law thus reflects these clauses since it strives to preserve the various traditions and conceptions of criminal law that coexist in the EU while extending across the EU a minimum floor for procedural rights in criminal matters. That said, the CJEU should give more weight to fundamental rights when balancing them against Member State and Union powers, especially given the increasing impact of EU law on domestic criminal law. Even though ‘criminal law [still] lies at the heart of national sovereignty’,34 the coexistence of different traditions must not obstruct the development of a high standard of fundamental rights within the EU. Indeed, only if that standard is high can it serve as a viable basis for solid trust among national judges. Moreover, the directives on procedural rights in criminal matters could provide an opportunity for EU institutions to address some of the growing concerns over fundamental rights at national level in such areas as conditions of detention conditions and pre-trial. As long as the Commission has the

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On this case, see Chapter 1. M González Pascual, ‘Criminal Law as an Essential Function of the State: Last Line of Resistance?’ in A Saiz Arnaiz and C Alcoberro Llivina (eds), National Constitutional Identity and European Integration (Intersentia 2013)165–67. Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1, art 8; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1, art 10; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1, art 14; Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L297/1, art 11; Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132/1, art 23; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1, art 13. Case C-554/14 Ognyanov EU:C:2016:835, Opinion of AG Bot, para 121.

A European Standard of Human Rights Protection?

power to monitor the implementation of the directives, their direct effect represents a valuable tool for protecting fundamental rights. However, the scope of this protection will depend on new developments in either case law or secondary law. Secondary law thus serves to flesh out the Charter. Conversely, the Charter ensures that existing standards of fundamental rights protection are preserved. This occurs when the CJEU focuses on EU secondary law through the prism of Charter rights, since any future amendments of secondary law must be consistent with the Charter. However, the CJEU eschews extensive interpretations of the rights contained in secondary law, especially in criminal matters, which limits the potential of fundamental rights in certain cases. Its restraint stems from a fear of the risks of full harmonisation of procedural rights.35 Nonetheless, the CJEU should not overlook the inadequacies of fundamental rights protection during pre-trial detention.

2.3 Mutual Trust and the Presumption of Sufficient Fundamental Rights Protection: Case Law on the Move The principle of mutual recognition is based on the presumption that the ‘national legal systems provide an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights’.36 This presumption is quite controversial, however, since it depends not merely on Member States’ adherence to international human rights treaties but must also take legal practice into consideration. Thus, any demonstration of a lack of compliance with fundamental rights should be considered a rebuttal of such a conclusive presumption. This was the argument advanced by the advocate general in Radu,37 but it was not followed by the CJEU in NS. In its opinion on the adherence of the EU to the ECHR, the CJEU further insisted that mutual trust requires, particularly with regard to the area of freedom, security and justice, each [Member State], save in exceptional circumstance, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law … Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that

35 37

36 On this issue, see Chapter 1. Case C-491/10 Aguirre Zagarra EU:C:2010:828, para 77. Case C-396/11 Radu EU:C:2012:648, Opinion of AG Sharpston, para 73.

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provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU.38

Not long after this opinion, however, the ECtHR held that it was necessary to carry out an assessment of fundamental rights protection in order to be able to rebut the presumption of equivalent protection in a case concerning the mutual recognition of judicial decisions in civil matters.39 This represented a turn in ECtHR case law on EU law,40 since the ECtHR had never before scrutinised the actual protection of a fundamental right in a given case, deferring instead to EU law. Thus, the ECtHR seemed disposed to review actual compliance with fundamental rights within the AFSJ. This judgment, in conjunction with the case law of the ECtHR on the Dublin system41 as well as several national decisions on the EAW,42 might have provoked a fundamental, across-the-board change in CJEU case law on the balance between mutual trust and fundamental rights. However, the change has not been to the same extent in the three main blocks of the AFSJ. It is more profound when it comes to asylum than it is in relation to judicial cooperation in criminal matters, and there is no real change as far as judicial cooperation in civil matters is concerned. Also, in each case, the change took place in three distinct phases which do not coincide chronologically since they relate to qualitative elements of the case law.43 The first phase was a long period of blind trust, during which mutual trust was not challenged. The reasoning in Melloni is the best example of this phase. A second phase of trust under strict conditions started with NS, in which the CJEU ruled that a transfer under the Dublin Regulation would be incompatible with fundamental rights ‘if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants

38 39 40

41

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43

Opinion 2/13 EU:C:2014:2454, para 191–92. Avotin‚š v Latvia, App no 17502/07 (ECtHR, 23 May 2016), para 121. On this case law, see T Lock, ‘Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights’ (2010) 10 Human Rights Law Review 529. MSS v Belgium and Greece, App no 30696/09 (ECtHR, 21 January 2011); Tarakhel v Switzerland, App no 29217/12 (ECtHR, 4 November 2014). Domestic courts have warned that they would refuse enforcement of an EAW on grounds of constitutional identity if fundamental rights could be violated by executing the warrant (German Constitutional Federal Court, 15 December 2015), or would request diplomatic assurances before surrendering the person requested (Aleksynas and others v Lithuania [2014] EWHC 437). E Xanthopolou, ‘Mutual Trust and Rights in EU Criminal Law and Asylum Law: Three Phases of Evolution and the Uncharted Territory beyond Blind Trust” (2018) 55 CMLRev 489, 492–98.

A European Standard of Human Rights Protection?

in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State’.44 This approach constituted a shift in the case law regarding mutual recognition, since it implied that the presumption of compliance with fundamental rights in the receiving Member State was rebuttable.45 More than that, it even implied the abandonment of automatic mutual recognition in favour of an assessment of systemic deficiencies in the human rights’ protection afforded by another Member State. Since the likelihood of such deficiencies could be assessed by relying on international reports of human rights bodies, including the decisions of the ECtHR, the CJEU thereby strengthened the role of international human rights protection in the AFSJ. Although the malfunctioning of the Common European Asylum System may have been the underlying reason for the CJEU’s decision,46 the Court limited this case law to systemic deficiencies. This is all the more surprising as the Court took its lead from ECtHR case law on the actual situation of asylum seekers under the Dublin System, in which the ECtHR took a more demanding approach. Soon after NS, the ECtHR delivered its judgment in Tarakhel v Switzerland, which paved the way for the CJEU’s judgment in CK, marking the start of the third and current phase in the balancing of mutual trust and fundamental rights. In CK, the CJEU abandoned the systemic deficiencies requirement and embraced instead an individual assessment of the risk of a violation of Article 4 of the Charter. Nonetheless, it seemed that the suspension of transfers on fundamental grounds was limited to breaches of Article 4 of the Charter as an absolute right, requiring the applicant to demonstrate ‘the particular seriousness of his state of health and the significant and irreversible consequences to which his transfer might lead’.47 Be this as it may, this judgment certainly improved the protection of fundamental rights within the AFSJ, but at the same time it raised further questions. First, since the decision was strongly influenced by ECtHR case law on asylum seekers, it is not clear whether and to what extent this case law can be applied to judicial cooperation in criminal and civil matters. Second, it seems that the absolute character of Article 4 of the Charter is peculiar to the judgment and might not extend to other fundamental rights. Last but not least, if ECtHR case law is capable of determining the decisions of the CJEU, the ECHR could do likewise for the articles of the Charter.

44 46

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45 Case C-411/10 NS EU:C:2011:865, para 85. ibid para 104. I Canor, I ‘My Brother’s Keeper? Horizontal Solange: “An Ever Closer Distrust among the Peoples of Europe”’ (2013) 50 CMLRev 383, 417 Case C-578/16 PPU CK EU:C:2017:127, para 75.

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2.3.1

Judicial Cooperation and Fundamental Rights: Impunity as a Counterbalance?

With regard to judicial cooperation, the CJEU has considered that the execution of a mutual recognition instrument can be suspended in criminal matters on the basis of Article 4 of the Charter. In the seminal case Aranyosi and Caldararu,48 the CJEU put forward a two-step approach. First, the national court may rely on objective, reliable, specific and properly updated information on the detention conditions prevailing in the issuing Member State to determine whether deficiencies,49 which may be systemic or generalised, affect certain groups of people or certain places of detention.50 Then, the executing judicial authority must specifically and precisely assess in the case at hand whether there are substantial grounds to believe that the individual concerned will be exposed to that risk.51 Surrender is deferred only until further information is received ruling out any risk of inhuman or degrading treatment. Failing receipt of such information within a reasonable period, the executing judicial authority shall decide whether the surrender procedure should be abandoned.52 Subsequently, in ML and Dorobantu, the CJEU had the opportunity to provide further guidance on the case law established in Aranyosi and Caldararu. In line with this restrictive interpretation of the suspension of the EAW, the CJEU has stressed the need for mutual trust among judicial authorities.53 The CJEU also made clear that the assessment must relate to the particular case at hand and cannot be based exclusively on ‘the general conditions of detention in all the

48 49

50 51 52 53

On this case, see Chapter 13. Such information can be obtained from ‘inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN’. Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Ca˘lda˘raru EU:C:2016:198, para 89. Thus, the CJEU asks domestic courts to rely on international human rights protection also in criminal matters. ibid. ibid para 92. ibid para 104. ‘When the assurance that the person concerned will not suffer inhuman or degrading treatment on account of the actual and precise conditions of his detention, irrespective of the prison in which he is detained in the issuing Member State, has been given, or at least endorsed, by the issuing judicial authority, … the executing judicial authority must rely on that assurance, at least in the absence of any specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter … It is, therefore, only in exceptional circumstances, and on the basis of precise information, that the executing judicial authority can find that … there is a real risk of the person concerned being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the Charter, because of the conditions of that person’s detention in the issuing Member State.’ Case C-128/18 Dorobantu, EU:C:2019:857, paras 68–69.

A European Standard of Human Rights Protection?

prisons in the issuing Member State in which the individual concerned might be detained’,54 since that could result in a risk of impunity incompatible with Article 3 TEU.55 This risk of impunity seems to play a key role in criminal matters, requiring domestic courts to undertake a particularly diligent assessment of the risk of inhumane treatment in light of the case law of the CJEU56 but also that of the ECtHR.57 This risk of impunity may well explain why the CJEU here requires a demanding two-step process for the suspension of EAWs, whereas in the field of asylum such a decision can under certain conditions be made on the basis of an individual assessment. One of the aims of judicial cooperation in criminal matters is undoubtedly the protection of victims whose rights impose a duty of reasonable and effective cooperation among states, even where an absolute right is at stake.58 Asylum law, on the other hand, is aimed at avoiding forum shopping59 which, important though it may be, does not deserve the same degree of attention as a violation of fundamental rights. The distinct purpose of judicial cooperation in criminal matters thus makes it more difficult to suspend instruments based on mutual recognition. This could also explain the CJEU’s has similarly restrictive approach to judicial cooperation in civil matters in cases of parental abduction.60 The ultimate aim of judicial decisions in cases of parental abduction is much the same as in EAW cases: preventing crime and maintaining public order.61 Indeed, the CJEU has been inflexible in cases of unlawful removal or retention of a child by a parent: the courts requested to execute the return order must enforce it promptly without analysing the circumstances surrounding the case. This is illustrated by Povse, a case concerning the right to family life, in which the CJEU strictly interpreted Brussels II bis.62 All questions, including even those relating to the best interests

54 56 57 58 60

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55 Case C-220/18 PPU Generalstaatsanwaltschaft EU:C:2018:589. ibid paras 85–86. Case C-128/18 Dorobantu (n 53) para 55. Romeo Castaño v Belgium, App no 8351/17 (ECtHR, 9 July 2019), para 85. 59 ibid para 81. Case C-411/10 NS EU:C:2011:611, Opinion of AG Trstenjak, para 94. It remains unclear why in other cases the CJEU does not apply the same reasoning to judicial cooperation in civil matters as it does in cases involving asylum seekers, given that judicial cooperation is normally intended to prevent forum shopping. M Weller, ‘Mutual Trust: In Search of the Future of the European Union Private International Law’ (2015) 11 Journal of Private International Law 64, 100. The CJEU has stated that independence, impartiality and respect for all parties to be heard are prerequisites for mutual trust in judicial cooperation in civil matters, but it has not drawn tangible consequences from these statements. See Cases C-551/15 Pula Parking EU:C:2017:193, para 54; C-484/15 Zulfikarpašic´ EU:C:2017:199, para 53. M González Pascual, ‘Mutual Recognition of Judicial Decisions and the Right to Family Life’ in M González Pascual and A Torres Pérez (eds), The Right to Family Life in the EU (Routledge 2018) 68. On this case, see Chapter 10.

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of the child, had to be resolved by the court issuing the return order, which could decide that it was necessary to suspend the enforcement of its judgment.63 No mention was made of Articles 8 or 24 of the Charter as a basis for suspending the return of the child.

2.3.2 The Essence of the Rights as a Reason for Suspending the Principle of Mutual Recognition The CJEU has extended the grounds for suspending an EAW to cases in which the essence of the right to an effective remedy and to fair trial is jeopardised. By ‘essence’, the Court means the protection of judicial independence. As it observed in LM, the right to a fair trial is ‘of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded’.64 References to the essence of a fundamental right are nothing new in CJEU case law. The essence of a right is not unknown to constitutional courts either and is used by courts to sanction the legislator in cases of severe breaches of a fundamental right. It is indeed a counter-majoritarian tool that empowers courts to take a firm stance against the democratic legislator, although it is hardly ever applied.65 In fact, the essence of a fundamental right has been the decisive factor in only two decisions of the CJEU.66 However, the CJEU appears to leave the door open for EAWs to be suspended on the basis of other rights, since the essence identified in LM is present in any fundamental right. The reference to the values of the EU does not rule out the inclusion of other rights as grounds for suspending the principle of mutual recognition. Human rights are explicitly mentioned among the values of the EU and, in any case, other values, such as liberty, are interwoven with fundamental rights. It could be questioned whether all of the fundamental rights enshrined in the Charter form part of the values of the EU, but the values of the EU certainly

63 64 65

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Case C-211/10PPU Povse EU:C:2010:344, para 81. Case C-216/18 PPU LM EU:C:2018:586, para 48. T Tridimas and G Gentile ‘The Essence of Rights: An Unreliable Boundary?’ (2019) 20 German Law Journal 794, 815–16. In Shrems, the CJEU dealt with the essence of the right to private life and the right to effective judicial protection. The CJEU held that the essence of the latter right was violated by legislation that did not provide ‘for any possibility for an individual to pursue legal remedies’. Case C-362/14 Shrems EU:C:2015:650, para 59. The essence of the right to an effective remedy and a fair trial was a decisive factor in Joined Cases C-585/18, C-624/18 and C-625/18 AK, CP y DO EU:C:2019:982, para 131, contingent on Cases C-619/18, Commission v Poland, EU:C:2019:531, para 58 and C-192/18, Commission v Poland, EU:C:2019:924, para 106.

A European Standard of Human Rights Protection?

appear to embrace more rights than human dignity and the rights deriving from the rule of law.67 In LM, the Court referred to Associação Sindical dos Juízes Portugueses concerning Portuguese judges’ reduced remuneration. In this ruling, the CJEU pointed out that ‘the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law’.68 Associação Sindical dos Juízes Portugueses has been used as a first step in defence of the rule of law in Poland,69 which might suggest that the case law on judicial independence is conditioned by this situation and cannot easily be extended to other rights or even to other aspects of the right to a fair trial and an effective remedy. All in all, LM implies that breaches of Articles 1 and 4 of the Charter are not the only means of reaching the threshold for putting mutual trust on hold, though it is not clear which other rights might be considered of cardinal importance for the EU. The CJEU’s emphasis on the need to respect the two-step Aranyosi approach must also be noted.70 Moreover, the CJEU insists that trust between Member States is founded on the premise that the criminal courts of the other Member States ‘meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts’.71 Thus, the CJEU requests that before suspending an EAW domestic courts carry out a test that is so stringent as to make suspension hardly feasible, if not impossible, in most cases. However, at least there is ‘a reversal of the burden of proof: in a case of a (general) systemic deficiency, it is the Member State in question to give evidence that there is no concrete risk for the individual concerned’.72

2.3.3 The ECHR as the Standard in Cases of Horizontal Cooperation The ECHR has been playing a key role in the AFSJ, not only because it is forcing the EU to move forward in the protection of fundamental rights but also because ECtHR case law is becoming the standard of protection of fundamental rights in cases of horizontal cooperation. Indeed, the CJEU has accepted the suspension or

67

68 69

70 72

K-P Sommermann, ‘Die Gemeinsamen Werte der Union und der Mitgliedstaaten’ in M Niedobitek (ed), Europarecht: Grundlagen und Politiken der Union (2nd edn, De Gruyter 2020) 287. Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117, para 36. On this case see, M Bonelli and M Claes ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary; ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses’ (2018) 14 European Constitutional Review 622. 71 Case C-216/18 PPU LM (n 64) para 55. ibid para 58. A von Bogdandy, ‘Principles and Challenges of a European Doctrine of Systemic Deficiencies’ (2019) MPIL Research Paper 2019–14.

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even the dismissal of mutual recognition instruments when there is a breach of the fundamental right as defined by the ECtHR. This has clearly been the case in the decisions on asylum seekers, for NS and CK derived to a large extent from MSS v Belgium and Greece and Tarakhel v Switzerland. Furthermore, in the cases concerning breaches of Article 4 of the Charter in judicial cooperation in criminal matters, the CJEU has relied on the ECtHR’s case law on Article 3 of the ECHR. This dependency was clear in Dorobantu, where the CJEU explicitly stated that it was relying on the case law of the ECtHR concerning conditions of detention.73 Furthermore, the CJEU has estimated that since the United Kingdom is a party to the ECHR, its withdrawal from the EU cannot justify the suspension or dismissal of an EAW on the ground that Article 4 of the Charter is at risk.74 This equation of the rights of the Charter and the rights of the ECHR is rooted in the Treaties and the Charter, but it does not prevent the CJEU from being more demanding, although this has not yet been the case. Indeed, the CJEU has established a low standard of fundamental rights protection in judicial cooperation in criminal matters by following the reasoning of the ECtHR on extradition procedures in cases involving an EAW. However, standards are lower in ECtHR case law on extradition, because the parties in those cases often include nationals from third states outside the ECtHR’s jurisdiction, which is not the case with the CJEU.75 However, the CJEU might be taking this approach to win the support of domestic courts in cases of mutual recognitions where Member States are prevented from applying their own standards. They are likely to be receptive to the standards of the ECHR, which are well known and accepted, as they have been developed thoroughly in case law. This extremely cautious approach has also been followed in asylum cases, with the CJEU adopting a restrictive reading of Article 4 of the Charter in relation to the living conditions of beneficiaries of international protection. The Court has considered that the threshold of Article 4 is reached only ‘where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that

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Case C-128/18 Dorobantu (n 53) para 58. Case C-327/18 PPU RO EU:C:2018:733, para 52. In fact, both AG Sharston (in Case C-396/11 Radu EU:C:2012:648, para 83) and AG Cruz Villalón (in Case C-237/15PPU Lanigan EU:C:2015:509, para 157) recommended increasing the ECtHR standard in extradition cases when applied to the EAW, because the ECtHR standard of protection was not ‘sufficient’ in such cases, as the EAW was not a mere variant extradition procedure. In LM, on the right to fair trial, AG Tanchev dwelt at length on ECtHR extradition case law; see Case C-216/18PPU LM EU:C:2018:517, paras 79–94.

A European Standard of Human Rights Protection?

undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity’.76 This standard differs substantially from that laid down in Saciri, where the CJEU considered that human dignity precluded depriving an asylum seeker of a daily expense allowance, housing, food and clothing, provided in kind or in the form of financial allowances, sufficient to preserve the family unit and, where applicable, the best interests of the children.77 Here, Directive 2009/9/EC setting minimum standards for the reception of asylum seekers was found applicable in a case that did not involve mutual recognition, which confirms that the CJEU will extend the rights enshrined in the Charter when supported by the secondary law, but that it is particularly restrictive when it comes to decisions that curtail the principle of mutual recognition. Mutual trust implies that Member States must not impose their own conceptions of fundamental rights but rather apply shared conceptions. The enforcement of EU law in very sensitive areas is decentralised, leaving Member States responsible for the enforcement of mutual recognition instruments. Through dialogue they are to develop a recognisable minimum set of fundamental rights which they must guarantee in common with each other.78 The ECHR provides such minimum common ground, especially in areas where the EU has not yet developed its own common standards.

2.4 Concluding Remarks The CJEU is slowly constructing a fragmented and nuanced standard of fundamental rights protection within the AFSJ. It is fragmented because it differs between the three main blocks of the AFSJ: asylum, judicial cooperation in criminal matters and judicial cooperation in civil matters. It is nuanced because it is subject to variation depending on the relevant secondary law, whether or not a general principle protects the fundamental right in issue, and whether or not it is to be applied as part of horizontal cooperation between national authorities. The protection of fundamental rights must address the challenges raised by both mutual trust and the principle of attribution. Mutual trust implies ‘trust in the adequacy of one’s partners’ rules and also trust that these rules are correctly applied’.79

76

77 78 79

Case C-163/17 Jawo EU:C:2019:218, para 92; Case C-438/17 Ibrahim EU:C:2019:219, para 88. On these cases, see Chapter 7. Case C-79/13 Saciri EU:C:2014:103, paras 35–41. M Fichera, The Foundations of the EU as a Polity (Edward Elgar 2018) 119. Joined Cases C-187/01 and C-358/01 Gözütok and Brügge EU:C:2002:516, para 124.

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Thus, the protection of fundamental rights must respond to the assumption that in particularly sensitive areas there is a common understanding on the core of the rights that must be protected, and that this core is generally safeguarded throughout the EU. This has not only reinforced the importance of the ECHR within the EU but led to an awareness that the core of the rights – those aspects of the rights that must be protected in any circumstances – is miniscule. Furthermore, the powers of the EU condition not only the jurisdiction of the CJEU but in many cases also the method of interpretation chosen by the Court. In the AFSJ, the principle of attribution in combination with the need to make very sensitive decisions has led the CJEU to proceed with great caution in the field of criminal law, and even to avoid directly engaging with the Charter. On a positive note, however, the standard of rights protection is obviously rising. This is clearly the case in horizontal cooperation, since the CJEU no longer denies courts the possibility of suspending mutual recognition instruments, which has led to an increase in the number of refusals to enforce a transfer or a surrender. However, it should be recalled that suspension is more feasible in theory than in practice in criminal matters, given the level of information on the actual situation of the criminal system in another Member State that must be available to a domestic court before it can order a suspension. This situation logically follows from the aims of judicial cooperation in criminal matters. The balance between security and liberty has traditionally posed a conundrum for constitutional systems. In the EU, the balance is all the more difficult to strike given the concurrence of different levels and actors whose competencies vary widely. However, the protection of fundamental rights lies at the heart of the Union’s identity and is one of the cornerstones of the AFSJ.80 Hence, the CJEU must preserve the consensus reached on fundamental rights and, when necessary, force EU institutions to strengthen their protection of fundamental rights.

80

K Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CMLRev 805, 840.

3

The Protection of Fundamental Rights within the AFSJ: Through or Against Mutual Trust and Mutual Recognition? FRANÇOIS-XAVIER MILLET

3.1 The Grand Journey of Mutual Recognition from the Internal Market to the AFSJ Since the beginnings of European integration, mutual recognition has been closely associated with the construction of the internal market.1 Back in 1957, the EEC Treaty contained only two provisions on mutual recognition. Article 57(1) TEEC empowered the Council to adopt directives on the mutual recognition of diplomas, certificates and other qualifications, while Article 220 TEEC was intended to ensure the mutual recognition of companies, judicial decisions and arbitral awards. Through these provisions, the ultimate aim was primarily to foster the free movement of economic agents and the freedom of establishment, albeit within circumscribed areas. It was the Court of Justice of the European Union (‘CJEU’ or ‘the Court’) which, in its seminal 1979 judgment in Cassis de Dijon,2 delivered against a backdrop of legislative paralysis, gave the principle of mutual recognition momentum and its current shape, enabling goods that had been produced and marketed in an EU Member State in compliance with the rules of that Member State to freely circulate across the Union. The approach to mutual recognition that the Court decided to embrace was revolutionary. First, through Cassis de Dijon, it championed negative integration at a time (the seventies and eighties) when positive integration (ie harmonisation) was being hampered by cumbersome decision-making processes in the then EEC. Second, the Court went beyond the TEEC’s provisions on mutual recognition. Not only did it significantly extend the scope of mutual recognition in order to

1

2

All the opinions expressed in this chapter are personal to the author. On mutual recognition in general, see eg C Janssens, The Principle of Mutual Recognition in EU Law (OUP 2013); K Armstrong, ‘Mutual Recognition’ in C Barnard and J. Scott (eds), The Law of the Single European Market: Unpacking the Premises (Hart 2002); M Möstl, ‘Preconditions and Limits of Mutual Recognition’ (2010) 47 CMLRev 405; K Nicolaidis, ‘Trusting the Poles? Constructing Europe Through Mutual Recognition’ (2007) 14 Journal of European Public Policy 282. Case 120/78 Rewe-Zentral EU:C:1979:42.

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promote the free movement of goods, but it also allowed the principle to produce legal effects on its own, that is, even in the absence of EU legislative acts specifically governing the practicalities of mutual recognition. As a result, the principle’s operation became congruent with its name: Member States were to recognise each other’s domestic rules, which in practice meant the rules of the country of origin. Subsequently, the principle of mutual recognition blossomed without mutual trust being mentioned in so many words. Only a few Commission communications referred to mutual trust3 and references to it in the case law of the Court were scarce. Only in a handful of rather old judgments did the Court insist on mutual trust, always discreetly and in conjunction with inspections carried out by the Member States of export.4 Mutual trust did not serve to limit mutual recognition; it was just mentioned in passing, presumably with a view to facilitating the free movement of goods by adding another layer of justification: not only were the Member States’ production and marketing rules equivalent to one another, but the (national) controls ensuring compliance with those rules were themselves trustworthy. The only limits to mutual recognition were those imposed by the mainly casuistic references to ‘mandatory requirements’ or ‘overriding reasons relating to the public interest’,5 which can be seen as the forerunners of mutual trust. It can be assumed that in the relatively small and homogenous internal market in which the principle of mutual recognition originated, there was no need for a grand principle of mutual trust to counterbalance the potentially far-reaching consequences of mutual recognition. The unconscious – or at least unstated – presupposition, if not belief, underlying mutual recognition was that the nine or twelve Member States by and large shared the same standards, so they could consider each other’s rules as interchangeable (‘equivalent’ in EU parlance) in the pursuit of specific aims. But the principle of mutual trust remained largely absent from EU legal discourse. The creation of the Area of Freedom, Security and Justice (AFSJ) led to a change of paradigm, however, in two ways. After being overshadowed by positive integration in the wake of the Maastricht Treaty, mutual recognition received fresh impetus through the Amsterdam Treaty with its aim of ensuring free movement

3

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5

See N Cambien, ‘Mutual Recognition and Mutual Trust in the Internal Market’ (2017) 2 European Papers 93, 108. See esp Case 46/76 Bauhuis EU:C:1977:6, paras 22, 38; Case 25/88 Wurmser and Norlaine EU:C:1989:187, para 18; Case C-5/94 Hedley Lomas EU:C:1996:205, para 19. Case 120/78 Rewe-Zentral EU:C:1979:42, para 8.

Fundamental Rights, Mutual Trust and Mutual Recognition

for persons. Yet, given the sensitive nature of the policies falling within the AFSJ, which touch upon individual freedoms and rights as well as the core of state sovereignty, it was manifestly no longer possible for mutual recognition to operate as a self-standing principle, especially in an EU composed of twenty-eight Member States. Thus, the early years of the twenty-first century saw the principle of mutual trust suddenly come on stage in the field of judicial cooperation, stealing the limelight from the principle of mutual recognition. The latter, meanwhile, underwent a major transformation: in contrast to Cassis de Dijon, where it concerned recognition of general and impersonal rules of Member States, the principle of mutual recognition now applied, albeit more modestly, to individual (judicial) decisions adopted on the basis of EU legislative acts. Against this background, the present chapter will examine the intertwinement of the principles of mutual recognition and mutual trust within the AFSJ and their relationship with fundamental rights. In the first place, mutual recognition is concerned not with fundamental rights but with integration, that is, the creation of an area of freedom, security and justice without internal borders. By flanking mutual recognition with the new principle of mutual trust, the CJEU and the EU legislator sought to foster mutual recognition on the basis of a virtuous, yet illusory, argument that (all) fundamental rights are equally safeguarded by (all) the Member States. In the early years of the AFSJ, the protection of fundamental rights was thus meant to be ensured through a combination of mutual recognition and mutual trust. Recently, however, the CJEU and the EU legislator have taken a more realistic approach by dispensing with the need for mutual recognition in exceptional circumstances where there is a failure to observe fundamental rights. On its face, that change suggests that the protection of fundamental rights may actually be at variance with mutual recognition and mutual trust. The main claim of this paper is that, within the framework of the AFSJ, a high level of protection of fundamental rights will be achieved by combining harmonisation with mutual recognition based on solid mutual trust grounded in reality. This calls for a major (re)thinking of the function and content of mutual trust, which clearly needs to be at the service of mutual recognition, given that of the two principles, it alone is constitutionally recognised in the EU. To that end, I first look at the parallel development of both principles in the AFSJ (Section 3.2), after which I will consider the changing function(s) of mutual trust regarding relation to mutual recognition (Section 3.3). I will then turn to the CJEU’s recent case law that has allowed concrete violations of certain fundamental rights to trump the principle of mutual recognition (Section 3.4). Finally, I will examine how mutual trust might be developed in order to strike an appropriate balance between fundamental rights and AFSJ integration (Section 3.5).

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3.2 The Coextensive Development of Mutual Trust and Mutual Recognition within Judicial Cooperation in Civil and Criminal Matters Judicial cooperation, by its very nature, is by far the principal playing field for mutual recognition within the AFSJ.6 It is therefore not surprising that mutual trust started to bloom in that context. As for judicial cooperation in civil matters, it did not naturally lend itself to paradigmatic shifts in the concrete functioning of mutual recognition post-Amsterdam. First, mutual recognition and enforcement of civil judgments were already quite advanced thanks to the 1968 Brussels Convention.7 While the Amsterdam Treaty introduced a detailed provision on the topic into primary EU law, namely Article 65 EC (currently Article 81 TFEU), it did not bring any groundbreaking changes. Second, judicial cooperation in civil matters is not sufficiently specific to the AFSJ to trigger a new approach to mutual recognition, for it lies at the intersection of the AFSJ with the internal market.8 Yet it is in the context of mutual recognition of judgments in civil matters that, to my knowledge, the first explicit reference to mutual trust appeared in a normative secondary law act as a moral justification for mutual recognition. Recital (16) of the Brussels I Regulation stated that: ‘Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.’9 In subsequent acts adopted pursuant to Article 81 TFEU, that reference quickly evolved into a description of mutual trust as the basis for mutual recognition of judgments delivered by Member State courts.10 6

7

8

9

10

TFEU art 67 (ex-art 61 TEC), which since Amsterdam is the opening provision of the part on the AFSJ, refers to the mutual recognition of judgments in both civil and criminal matters in connection with the establishment of an area without internal borders. Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters [1972] OJ L299/32. See TFEU art 81(2), according to which harmonisation measures in the field of judicial cooperation in civil matters shall be adopted ‘particularly when necessary for the proper functioning of the internal market’. Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 (emphasis added). See also Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1 (Brussels I Regulation (recast)), recital (26). See eg Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L338/1 (Brussels II Regulation), recital (21); Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) [2015] OJ L141/19 (Insolvency Regulation), recital (65). In those acts, mutual trust serves to justify reducing the grounds for non-recognition of judgments issued in another Member State to the minimum necessary.

Fundamental Rights, Mutual Trust and Mutual Recognition

The fact that mutual trust was referred to, albeit restrictively, in a field where mutual recognition was widely accepted is noteworthy in itself. While it is true that, from a fundamental rights perspective, civil matters are generally less sensitive than criminal matters,11 the reference to mutual trust shows that the EU legislator was already aware that, as in criminal matters, mutual recognition of judgments in civil matters might one day be defeated because of structural problems related to the system of justice in one Member State. Indeed, the possibility of a Member State court issuing a judgment on civil or commercial matters that was politically tainted or coloured by moral biases on the part of its author(s) could not be excluded. In such a situation, mutual trust could possibly be relied on to refuse mutual recognition when it is not accompanied by trust. It is in the context of judicial cooperation in criminal matters, however, that the principles of mutual recognition and mutual trust have truly developed hand in hand, leading to their becoming intertwined. Ever since the Tampere Council in 1999, mutual recognition has been trumpeted as ‘a cornerstone of judicial co-operation in both civil and criminal matters within the EU’12 in secondary law dealing with those matters. Yet, the increasing role played by mutual trust in criminal matters tends to suggest that it has become the true cornerstone. Over the past two decades, whenever the EU legislator has adopted harmonisation measures implementing the principle of mutual recognition in criminal matters, they have been backed up with references to the principle of mutual trust or mutual confidence.13 In the criminal field, which raises highly sensitive issues in relation to both fundamental rights and state sovereignty, it is essential that neither security nor justice be jeopardised when promoting the free movement of persons. As a consequence, mutual recognition cannot operate in isolation; its legitimacy, and thus its enforceability, depend on its having strong political and moral foundations. For this reason, mutual recognition and mutual trust generally operate in tandem in the field of judicial cooperation. However, there are other spheres of the AFSJ, less concerned with mutual recognition, in which mutual trust can be seen

11 12 13

That said, family law can of course raise highly sensitive issues, too. Tampere European Council, 15–16 October 1999, Presidency Conclusions, para 33. See eg Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L327/27, recital (2); Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1, recital (6).

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to play a role, too. There, mutual trust has sometimes become so autonomous that it seems to part company with its Siamese twin and to take up a new function and meaning. For instance, with respect to asylum crises, the Dublin III Regulation has referred to the need ‘to develop mutual trust’ – meaning solidarity between Member States – in cases of ‘particular pressure on, and/or deficiencies in, the asylum systems of one or more Member States’.14 Likewise, in the field of immigration, Directive 2003/109 provides that ‘harmonisation of the terms for acquisition of long-term resident status promotes mutual confidence between Member States’.15 In both of those examples, mutual trust appears to have a life of its own, independent of mutual recognition: it is either synonymous with solidarity or the natural consequence of harmonisation. This all shows that while mutual recognition has become quite dependent on mutual trust, the reverse is not true. EU law’s evolution – almost in a Darwinian sense – suggests that the principle of mutual trust has increasingly overshadowed the principle of mutual recognition.16 In any event, the former counterpoints the latter, amplifying fundamental rights protection within the AFSJ.

3.3

Mutual Trust as a Counterpoint to Mutual Recognition in the CJEU’s Case Law

The use and function of mutual trust have evolved over time. Under the Court’s impulse, mutual trust has shed its mystical aura to become a concrete principle resting on a substratum of fundamental rights and EU values that has practical legal consequences.

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Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31, recital (12). Council Directive 2003/109/EU of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44, recital (17) (emphasis added). Also illustrated in the fact that legal scholarship now dedicates most of its attention to mutual trust, as testified by the titles of several recent publications eg V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Interstate Cooperation to the Slow Emergence of the Individual’ (2012) 31 YEL 319; E Brouwer and D Gerard (eds), Mapping Mutual Trust: Understanding and Framing the Role of Mutual Trust in EU Law (2016) EUI Working Paper MWP 2016/13; E Bribosia and A Weyembergh, ‘Confiance Mutuelle et Droits Fondamentaux: “Back to The Future”’ (2016) CDE 469; S Prechal, ‘Mutual Trust before the Court of Justice of the European Union’ (2017) 2 European Papers 75; E Xanthopoulou, ‘Mutual Trust and Rights in EU Criminal and Asylum Law: Three Phases of Evolution and the Uncharted Territory beyond Blind Trust’ (2018) 55 CMLRev 489.

Fundamental Rights, Mutual Trust and Mutual Recognition

3.3.1 A Totemic Mantra Initially, mutual trust had the trappings of a vague assumption in EU secondary laws, as reflected in statements along the following lines: the European arrest warrant (‘EAW’) ‘is based on a high level of confidence between Member States’,17 or ‘mutual trust is not only trust in the adequacy of one’s partners rules, but also trust that these rules are correctly applied’.18 The object of mutual trust was largely undefined, however. Instead of being trust ‘in’ a specific rule or institution, it was mutual trust between the Member States tout court. Mutual trust operated rather like a self-fulfilling prophecy: one had only to believe in it for it to happen. A change of tack began to emerge in 2003. In Gözütok and Brügge,19 the Court elaborate a little on how mutual trust operated. The crux of the matter to be determined in that case was whether a Member State was bound to recognise, without any judicial involvement, decisions that had been issued in another Member State. The Court held that ‘the necessary implication [of the ne bis in idem principle is] that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied’.20 From then on, mutual trust had not only an object (here, the criminal justice system) but also a function: to endow decisions rendered in other Member States with legitimacy. Subsequently, the Court increasingly referred to mutual trust as a key condition for mutual recognition. Leaving aside references to mutual trust in the adequacy of qualifications awarded by other Member States (hence, trust in education systems across Europe),21 it is in the context of judicial cooperation in civil matters that the principle of mutual trust took shape in the CJEU’s case law. In 2003, the Court held that the Brussels Convention ‘is necessarily based on the trust which the Contracting States accord to each other’s legal systems and judicial

17

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19 20

21

See Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1, recital (12). See also eg Council Framework Decision 2008/909/JHA (n 13), recital (5); Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L350/72), recital (8). Commission, ‘Mutual recognition of final decisions in criminal matters’ (Communication to the Council and the European Parliament) (COM (2000) 495 final, 4). Joined Cases C-187/01 and C-385/01 Gözütok and Brügge EU:C:2003:87. ibid para 33 (emphasis added). For further confirmation, see Case C-436/04 van Esbroeck EU:C:2006:165, para 30; Case C-467/04 Gasparini and Others EU:C:2006:610, para 30. Case C-110/01 Tennah-Durez EU:C:2003:357, paras 30 and 69. Interestingly, in that case, the Court felt it necessary to go further to justify mutual recognition in that context by insisting on the fact that medical training was harmonised at EU level (see paras 31–32).

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institutions’.22 This statement, which brings to mind Recital (16) of the Brussels I Regulation, was subsequently extended to the Insolvency Regulation23 as well as to the Brussels I Regulation24 and the Brussels II Regulation.25 Thus, the object of mutual trust has become more varied and now concerns not only criminal justice but, more broadly, justice as an institution. Since the turn of the century, therefore, mutual trust has been gradually fleshed out in order to serve as the (moral) foundation for the (legal/constitutional) principle of mutual recognition. It does not have a narrow object (in the sense of a concrete rule or set of rules) but means mutual trust in some form of institution (justice system, prison system, higher education, etc.) or, more precisely, in the proper functioning of that institution and adherence to the modern standards applying to it (sound administration of justice, decent state of prisons, quality of higher education, etc.). The outcome of a dispute was considered immaterial; the paramount requirement was that there should be trust. To paraphrase Fritz Scharpf’s famous distinction between input and output legitimacy,26 mutual trust was a tool to bolster input legitimacy for the purpose of strengthening otherwise questionable output legitimacy. Thus, like a totemic mantra, mutual trust has been invoked to provide legal justification for automatic and unconditional mutual recognition within the AFSJ and to lend moral force to an outcome that might appear debatable or lack legitimacy at a domestic level.

3.3.2 A Rebuttable Presumption of Member State Compliance with Fundamental Rights Despite the developments described above, mutual trust remained quite abstract, aspirational and poorly rooted in reality. It was only in the 2010s that the situation changed when the EU legislator and the Court adopted a more realistic conception of mutual trust as a legal instrument implying a rebuttable presumption of Member State compliance with certain fundamental rights: because mutual trust was not blind trust,27 mutual recognition could not be automatic and unconditional. The EU legislator was the first to realise that merely proclaiming mutual trust with bombast was not a durable basis on which to establish mutual recognition

22

23 24 25

26 27

Case C-116/02 Gasser EU:C:2003:657, para 72; Case C-159/02 Turner EU:C:2004:228, paras 24–25 (emphasis added). See eg Case C-444/07 MG Probud Gdynia EU:C:2010:24, paras 27–29. See eg Case C-456/11 Gothaer Allgemeine Versicherung and Others EU:C:2012:719, para 35. See eg Case C-256/09 Purrucker EU:C:2010:437, paras 70–73; Case C-428/15 D. EU:C:2016:819, para 57. F Scharpf, Regieren in Europa: Effektiv und Demokratisch? (Campus 1999) 16–28. See K Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CMLRev 805.

Fundamental Rights, Mutual Trust and Mutual Recognition

as a constitutional technique for further integration within the AFSJ. It acknowledged that in practice mutual trust was often illusory, noting from experience in a number of directives that a Member State’s adhesion to the ECHR ‘does not always provide a sufficient degree of trust in the criminal justice systems of other Member States’.28 It was the CJEU, however, under external pressure from the European Court of Human Rights (ECtHR), that gave legal substance to mutual trust in the context of the EU’s abortive attempt to accede to the ECHR. In the famous Opinion 2/13, the Court stated that ‘the principle of mutual trust between the Member States is of fundamental importance in EU law’.29 It also gave it content in the form of the fundamental rights and EU values that all the Member States share.30 As a legal consequence, Member States could not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law. Nor, in principle, could they check whether the other Member State had observed EU fundamental rights. In other words, mutual trust supports full mutual recognition, save in ‘exceptional circumstances’ when certain rights are in issue.31

3.4 The CJEU’s Jurisprudence of Exceptional Circumstances Relating to Concrete Violations of Certain Fundamental Rights The contours of the ‘exceptional circumstances’ in which the presumption of respect for fundamental rights by Member States can be rebutted – and mutual recognition defeated – remain blurred. The Court is defining them incrementally in response to concrete disputes. In so doing, it is creating a hierarchy of AFSJ-related fundamental rights, in which some appear to be more fundamental than others. The first case in which the Court stated that the presumption of compliance with fundamental rights was rebuttable did not actually concern mutual recognition, and it predated Opinion 2/13. After finding that in Greece there was a risk that an asylum seeker would be exposed to conditions of detention and living that amounted to degrading treatment, the Court, following the line taken by the ECtHR, ruled against the transfer of asylum seekers.32 Although it is to

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See eg Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to translation and interpretation in criminal proceedings [2010] OJ L280/1, recital (6). Opinion 2/13, Accession of the European Union to the ECHR, EU:C:2014:2454, para 191. 31 ibid para 168. ibid para 192. Joined Cases C-411/10 and C-493/10 NS and Others EU:C:2011:865. For recent confirmation, see Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17 Ibrahim and Others EU:C:2019:219, paras 83–88.

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be presumed that in every Member State the processing of asylum applications complies with the Charter, that presumption can be rebutted ‘if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State’.33 Five years later, the Court extended that approach to the realm of the EAW, thus clearly in the context of mutual recognition this time. In Aranyosi and Ca˘lda˘raru,34 the Court endorsed the postponement of the execution of an EAW if the person subject to it faces a real risk of inhuman or degrading treatment because of the poor conditions of detention in the issuing Member State (namely, Hungary and Romania). In its judgment, the Court insisted on both mutual trust and mutual recognition in the context of the AFSJ,35 which reflects the shifting balance between those two principles. At the same time, the special status of the Charter’s Article 4 was confirmed, so a real risk of its violation could lead to the suspension of obligations deriving from EU law, be it the transfer of asylum seekers to the Member State responsible or the mutual recognition – and thus execution – of an EAW. According to the Court, the prohibition of unfair and degrading treatment ‘is absolute in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter’.36 As a logical consequence, Article 4 will systematically override considerations relating to mutual trust and mutual recognition.37 Admittedly, in view of the highly specific nature of Article 4, which has the same status as Article 3 ECHR, singling it out in order to defeat the principle of mutual recognition was an easy (and defensible38) task. Using other Charter rights for the same purpose is quite a different matter, however. Yet, in the context of the rule-of-law crisis in Poland, the Court has recently expanded the

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36 37 38

ibid para 86. The Court recently cleared Italy, albeit with a caution, regarding the living conditions that an asylum seeker could be expected to encounter as a beneficiary of international protection in that Member State (C-163/17 Jawo EU:C:2019:218). See also, Case C-578/16 PPU CK and Others EU:C:2017:127, para 60, where the Court considered that the transfer of a seriously ill asylum seeker from Slovenia to Croatia was in itself a breach of Article 4 TFEU, irrespective of the living conditions offered in Croatia. Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Ca˘lda˘raru EU:C:2016:198. See paras 77–78. In subsequent judgments relating to the AFSJ, the Court started to refer to both mutual trust and mutual recognition as being ‘of fundamental importance’, whereas Opinion 2/13 emphasised only mutual trust (see eg Case C-477/16 PPU Kovalkovas EU:C:2016:861, para 27; Case C-509/18, PF (Prosecutor General of Lithuania) (EU:C:2019:457, para 22). Joined Cases C-404/15 and C 659/15 PPU Aranyosi and Ca˘lda˘raru para 85. That was explicitly established in Case C-128/18 Dorobantu EU:C:2019:857, paras 82, 84. That said, the Court went well beyond the letter of the framework decision on the EAW by judicially deciding to suspend a surrender (albeit temporarily), where a decision of a political institution (esp the Council) is normally required (see recital (10)).

Fundamental Rights, Mutual Trust and Mutual Recognition

scope of its jurisprudence on ‘exceptional circumstances’ to violations of Article 47(2) of the Charter. In LM,39 the Court held that judicial authorities should suspend the execution of an EAW if the person subject to that warrant runs a real risk of having their fundamental right to a fair trial violated on account of systemic or generalised deficiencies affecting the independence of the issuing Member State’s judiciary. Interestingly, in order to place the real risk of a breach of the fundamental right of access to an independent tribunal on the same footing as the real risk of a breach of Article 4 of the Charter, the Court took an essentialist approach to the right to a fair trial. It stated that ‘[t]he requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected’40 and that ‘[t]he very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law’.41 Thus, on one reading, judicial review carried out by independent bodies is key in a European Union whose backbone – or perhaps dignity – lies in the rule of law. It is therefore hardly surprising that a court such as the CJEU, with its preliminary reference procedure, should have considered that mutual recognition must yield when judicial independence is undermined. This jurisprudence on exceptional circumstances is daring. It is daring because treating mutual trust as a rebuttable presumption appears prima facie to undermine the sacrosanct principle of mutual recognition – and thus integration – within the AFSJ. It is also daring because it interprets the framework decision on the EAW in a way that seems to challenge the letter of the law by creating a new ground for non-execution (albeit temporary), in addition to the grounds already mentioned in what was supposedly an exhaustive list.42 Overall, however, the jurisprudence appears reasonable in many respects. First, the more realistic approach it embodies enhances fundamental rights by ensuring that the outcome of a given dispute will be in line either with EU fundamental rights that are to be considered as ‘core rights’ or with the essence of fundamental rights.43 In so doing, the Court is clearly

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41 42

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Case C-216/18 PPU Minister for Justice and Equality EU:C:2018:586 (deficiencies in the system of justice). ibid para 48 (emphasis added). On the tricky concept of essence of rights, see T Tridimas and G Gentile, ‘The Essence of Rights: An Unreliable Boundary?’ (2019) 20 German Law Journal 794. Minister for Justice and Equality (n 39) para 51 (emphasis added). To that effect, albeit with circumspection, see A Lazowski, ‘The Sky Is Not the Limit: Mutual Trust and Mutual Recognition après Aranyosi and Caldararu’ (2018) 14 Croatian Yearbook of European Law and Policy 1, 16. On the relationship between the limits to mutual trust and the essence of fundamental rights within the AFSJ, see M Wendel, ‘Mutual Trust, Essence and Federalism: Between Consolidating and Fragmenting the Area of Freedom, Security and Justice after LM’ (2019) 15 EuConst 17, 25–35.

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ingratiating itself with the ECtHR (post Opinion 2/13), but also with national constitutional courts (post Melloni):44 there are (exceptional) circumstances in which AFSJ integration through mutual recognition will yield to fundamental rights. Second, the jurisprudence on exceptional circumstances is quite circumscribed. For now at least, its scope is limited to EAWs45 and to two Charter rights, and it is unclear whether Article 47(2) can be relied on other than in a procedure relating to a breach of the rule of law. Its outcome is the mere suspension of EAWs. Furthermore, it is conditional not only on the existence of systemic or generalised deficiencies but also an in concreto assessment46 that is so difficult to carry out that it may often lead to a decision not to suspend the EAW.47 Third, the jurisprudence puts to rest the fiction of mutual trust and nonsensical mutual recognition in hard cases, while encouraging Member States to take it upon themselves to ensure the quality and proper functioning of their own institutions (that is, by improving conditions of detention or guaranteeing the independence of the justice system so that EAWs issued by them will ultimately be executed).

3.5

On the Future Balance between AFSJ Integration and Fundamental Rights

A number of questions follow from the current state of the law. The jurisprudence on exceptional circumstances has not yet fully determined the nature of the relationship between fundamental rights and the establishment of an area of freedom, security and justice. First, the use of mutual trust as a rebuttable presumption of compliance with fundamental rights only in very exceptional circumstances raises the question of the actual place of fundamental rights in relation to mutual recognition within the AFSJ. Can CJEU case law be interpreted as giving clear precedence to mutual recognition (and thereby to the establishment of an integrated AFSJ) at the expense of fundamental rights in general? Additionally, can we anticipate an expansion of the jurisprudence on exceptional circumstances – and, thus,

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Case C-399/11 Melloni EU:C:2013:107. To understand why there would be a need to kowtow to constitutional courts after that judgment, see LFM Besselink, ‘The Parameters of Constitutional Conflict After Melloni’ (2014) 39 ELRev 531. Decisions on transfers of asylum seekers certainly fall within the jurisprudence of exceptional circumstances, but lie beyond mutual recognition. For a strict in concreto approach, see eg Case C-220/18 PPU, Generalstaatsanwaltschaft, EU:C:2018:589, paras 61–66, 77et seq (conditions of detention in Hungary). This may explain why, in LM, the High Court of Ireland eventually refused to suspend the surrender procedure (see Celmer (No 5) [2018] IEHC 639, paras 11 et seq). An appeal against that decision has since been dismissed by the Supreme Court of Ireland (see [2019] IESC 80).

Fundamental Rights, Mutual Trust and Mutual Recognition

an enrichment of mutual trust – to other rights and to other aspects of the AFSJ? Second, mutual trust acts as the hinge between mutual recognition and respect for fundamental rights. Does the fact that mutual trust is defined and enforced by the Court only in relation to fundamental rights provide an adequate basis for the application of mutual recognition? And what about other values or interests apart from fundamental rights?

3.5.1

Further Fundamental Rights

It is important to emphasise that the jurisprudence on exceptional circumstances should not be regarded as affording fundamental rights protection only on an exceptional basis. As previously suggested, that jurisprudence is directed only at Member State institutions when they implement individual decisions adopted on the basis of general and impersonal EU acts facilitating mutual recognition. It is on those EU acts that harmonise procedural law that the effectiveness of fundamental rights protection depends in the first place. Over the past two decades, the EU legislator has adopted many framework decisions and directives to regulate the AFSJ. Although they are not primarily aimed at protecting fundamental rights, the grounds on which they permit nonexecution reflect the wish to strike a certain balance between fundamental rights and AFSJ integration, which the CJEU will scrutinise, notably in the light of the Charter.48 The legislator now even provides that non-execution may be permitted if there are substantial reasons to believe that the execution of the decision would be incompatible with the Charter.49 Fundamental rights are increasingly protected by the EU legislator through the adoption of directives that harmonise certain aspects of procedural law with a view to setting common minimum standards.50 As these common standards will lead to increased confidence in the criminal justice systems of all Member States, this in turn will lead to more efficient judicial cooperation, in a climate of mutual trust, and the promotion of a fundamental rights culture in Europe.

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See eg Case C-303/05 Advocaten voor de Wereld EU:C:2007:261, paras 45–47; Case C-396/11 Radu EU:C:2013:39, paras 41–42; Joined Cases C-391/16, C-77/17 and C- 78/17 M and Others EU:C:2019:403 (revocation of refugee status, with regard to Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast)), paras 77–78. See Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1, art 11(1)(f). See eg Dir 2010/64/EU (n 28) on the right to translation and interpretation in criminal proceedings; Dir 2013/48/EU (n 13) on the right to have access to a lawyer and the right of persons in custody to communicate with third persons and consular authorities.

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In view of the array of EU acts that, to varying degrees, are protective of fundamental rights, it is somewhat understandable that individual decisions taken on the basis of these acts are presumed to comply with fundamental rights and hence, in principle, immune to challenge. Yet the lawfulness of EU secondary law acts does not necessarily imply that individual decisions made by national institutions pursuant to those acts are lawful, too. Purely formal reasoning of this kind would favour AFSJ integration over fundamental rights as far as individual national decisions are concerned. The jurisprudence on exceptional circumstances, however, demonstrates the Court’s wish to rebalance integration and fundamental rights, the realisation of which will ultimately depend on whether the Court broadens the scope of that jurisprudence to other Charter rights and AFSJ fields. While some might think it strange to expand ‘exceptional circumstances’, a number of arguments militate in favour of their expansion. First, the provision that was interpreted by the Court in Aranyosi and LM does not distinguish between the fundamental rights in issue.51 Second, as explained above, the Court uses other safeguards to contain the legal consequences of a finding of exceptional circumstances. Its expansion to other rights or AFSJ fields does not therefore appear particularly hazardous. Third, the Court’s jurisprudence on exceptional circumstances does not challenge the compatibility of EU acts (for instance, the grounds for non-execution) with fundamental rights, for again its focus is on the functioning of national institutions in harmonised areas.52 It is, admittedly, easier for the Court to enjoin mutual recognition when its primary impact is on Member States rather than on the EU legislator. Now that the Court has decided to go beyond the absolute prohibition of unfair and degrading treatment to cover the independence of the justice system, it would make little sense not to broaden the scope of the jurisprudence on exceptional circumstances to all rights falling within Titles I and VI of the Charter, which deal respectively with human dignity and justice. Those rights are indeed among the most sensitive (and relevant) in the context of the AFSJ. The right to life, the right to the integrity of the person and the prohibition of slavery and forced labour all pertain to human dignity and should not be treated differently from the prohibition of inhuman and degrading treatment.53 By the same token, it would be surprising if, when ruling on judicial cooperation in criminal matters, the Court were 51

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Framework Decision 2002/584/JHA (n 17), art 1(3), provides that ‘this Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]’. See also Dir 2014/41/EU (n 49) art 11(1)(f). To that effect, see Case C-399/11 Melloni EU:C:2013:107; also, with regard to areas of the EAW that have not been fully harmonised, Case C-168/13 PPU F EU:C:2013:358, paras 51–53. Although it formally falls within Title II, Article 19 of the Charter is also most probably relevant in as much as it is linked to Article 4. To that effect, see Case C-353/16 MP EU:C:2018:276 (subsidiary protection of a person previously a victim of torture), para 44.

Fundamental Rights, Mutual Trust and Mutual Recognition

to restrict its attention to the independence of the system of justice of a Member State subject to a procedure for breach of the rule of law. Given that mutual trust in the administration of justice is key for mutual recognition, exceptional circumstances should logically extend to all dimensions of a properly functioning system of justice and all fields of the AFSJ, regardless of any ongoing procedure based on Article 7 TEU. The Court has itself appeared receptive to this idea in two recent judgments relating to judicial cooperation in civil matters. In Gazprom, the Court contemplated the possibility that mutual trust could potentially be affected by the way in which a court of a Member State issued a decision, thereby suggesting that mutual recognition is not absolute in that field either.54 In Pula Parking, the Court gave mutual trust in the administration of justice a precise object by stating that it ‘requires, in particular, that judgments the enforcement of which is sought in another Member State have been delivered in court proceedings offering guarantees of independence and impartiality and in compliance with the principle of audi alteram partem’.55 It follows that all aspects of the right to an effective review must be ensured for purposes of judicial cooperation in general: justice must be delivered within a reasonable time and publicly, and those who lack sufficient resources must be entitled to legal aid. Thus, if the courts of a Member State delivered justice behind closed doors, overhastily or with undue delay, or if legal aid was unavailable when needed, the Court should suspend the application of the principle of mutual recognition. The same should probably also go for the other rights in Title VI, which are all intrinsic to the sound administration of justice.56 In any event, in deciding on the exact scope of the rights that come within the jurisprudence on exceptional circumstances, the Court will doubtless be influenced by the case law of the ECtHR, since the external pressure exerted by that case law is what motivated the jurisprudence in the first place.57 EU legislation

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Case C-536/13 Gazprom EU:C:2015:316, paras 37, 39. Case C-551/15 Pula Parking EU:C:2017:193, para 54. See also, in the same case, EU:C:2016:825, Opinion of AG Bobek, para 105. The Court’s precision here on the content of mutual trust in the administration of justice seems to prefigure its judgment in LM. These include the presumption of innocence, the right of defence, ne bis in idem and the legality and proportionality of criminal offences and penalties. However, the Court’s willingness to safeguard the latter at all costs is somewhat more debatable in view of the judgments delivered in cases such as C-105/14 Taricco and Others EU:C:2015:555 and C-612/15 Kolev and Others EU:C:2018:392. For a critical reaction to those judgments, see Case C-310/16 Dzivev EU:C:2018:623, Opinion of AG Bobek. For a further indication of the ECtHR’s influence in this respect, see Case C-327/18 PPU RO EU:C:2018:733, para 52, where the CJEU held, in the context of Brexit, that the mere notification by a Member State of its intention to withdraw from the EU could not, as such, constitute an exceptional circumstance. However, the Court insisted on the United Kingdom’s continuing adhesion to the ECHR, suggesting that its conclusion would have otherwise been different.

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that precisely delineates the situations in which manifest breaches of fundamental rights may defeat mutual recognition will also be relevant.58

3.5.2

Other Values

The place of values and interests other than fundamental rights within the concept of mutual trust appears quite limited. Due to the way in which mutual trust has been defined by the CJEU and the EU legislator, the jurisprudence of exceptional circumstances has developed as a jurisprudence of fundamental rights, paradoxical though that may seem.59 What about other values, however, such as the protection of external borders or public security, which could be equally pertinent to the legitimate enforcement of mutual recognition? Important though respect for fundamental rights may be to guaranteeing the legitimacy of national decisions related to the AFSJ, the AFSJ also raises security and sovereignty issues which, along with fundamental rights, need to be taken into account when looking at administrative decisions with cross-border implications in asylum or immigration matters, such as the granting of refugee status or the issuance of a residence permit, which allow free movement across the EU. Because of their administrative nature, these decisions are more sensitive than judicial decisions. The guarantees built into judicial processes are generally still much greater than those associated with administrative decisions. Yet, they have so far been overlooked by a jurisprudence on exceptional circumstances that is concerned only with mutual recognition of judicial decisions.60 In view of the current Dublin system and the influx of asylum-seekers, however, Member States might repeatedly encounter technical or political difficulties in the processing of those applications. They might also follow different standards with respect to the

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See eg Dir 2014/41/EU (n 49), recitals (12), (17) and (40), which respectively refer to the rights of art 48 of the Charter, ne bis in idem and data protection; Regulation (EU) 2018/1805 of the European Parliament and of the Council on the mutual recognition of freezing orders and confiscation orders [2018] OJ L303/1, recital (34), which describes the right to an effective remedy, the right to a fair trial and the right of defence as relevant, but not the right to property. Theories of exceptional circumstances are usually connected to exceptions to the rule of law leading to the suspension of fundamental rights. The EU approach to exceptional circumstances is therefore quite original. Interestingly, the Court recently relied on mutual trust in the context of administrative cooperation within the internal market (see Case C-34/17 Donnellan EU:C:2018:282, paras 40–41; Case C-695/17 Metirato EU:C:2019:209, para 42). It is unclear, however, whether that step was thought through or just a consequence of mutual trust’s ascendancy within the AFSJ. For a perceptive view on the potential misuse of mutual trust in the context of the recognition of administrative decisions concerning posted workers, see Joined Cases C-370/17 and C-37/18 CRPNPAC and Vueling Airlines EU:C:2019:592, Opinion of AG Saugmandsgaard Øe, paras 87–90.

Fundamental Rights, Mutual Trust and Mutual Recognition

pre-eminently national notions of public order and public security. This might leave potential terrorists off the radar and liable to be granted the status of asylum-seeker. Those states might also be considered simply too lax (or too rigid), causing other Member States to question whether mutual recognition should take effect. Neither the Court nor the EU legislator has yet come up with a clear approach to the role that public security may play regarding the (non-)recognition of such administrative decisions.61 This may well be the next (tricky) topic that the Court addresses in the context of political strains on asylum and immigration. Be that as it may, mutual trust would undoubtedly be enriched if that third dimension, distinct from fundamental rights and integration, were to be included. Nothing less than the legitimacy and enforcement of individual decisions that implement EU law – and thereby the effectiveness of EU law – are ultimately at stake.

3.6 Conclusion Originally a grand, self-standing principle wholly targeted at EU integration in the context of the internal market, mutual recognition was bound to change, both in scope and nature, upon entering the minefield of the AFSJ, where free movement of persons, fundamental rights, public security, territorial sovereignty (be it that of the Member States or the EU) and political and legal diversity are all at stake. Far from being, as some fear, the Trojan Horse of increased centralisation, relying on competition between rules to create an even playing field through a race to the bottom, mutual recognition simply consists of the acceptance by one Member State of individual decisions taken by another Member State under conditions laid down in EU secondary laws. In practice, that entails mutual recognition of the various relevant national institutions that act as agents executing those laws – pre-eminently, the justice system and the prison system. Despite the limited reach of mutual recognition within the AFSJ, it quickly appeared necessary to buttress it morally – and subsequently legally – with a principle of mutual trust between Member States that has increasingly stolen the limelight. It is through the principle of mutual trust that the Court has developed its jurisprudence on exceptional circumstances, leading to a gradual shift in the balance between fundamental rights and AFSJ integration. It remains to be seen

61

Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals [2001] (OJ L149/34) is the only relevant EU law on that matter. It does not mention mutual trust or grounds for non-recognition, however. Although it has a clear public security objective, it is to be noted that it still insists on respect for fundamental rights (see art 3(2)).

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whether that shift will eventually prove beneficial to the exercise of all the fundamental rights pertaining to human dignity and justice – not forgetting security, which has so far remained absent from the definition of mutual trust but is equally necessary to the proper functioning and legitimacy of the AFSJ.

PART II Asylum, Migration and Borders

4

Mutual (Dis-)Trust in EU Migration and Asylum Law: The ‘Exceptionalisation’ of Fundamental Rights VIOLETA MORENO-LAX

4.1 The Objectivation of Mutual (Dis-)Trust Mutual trust (or mutual confidence) has been relied upon as the organising principle of mechanisms of (implicit) mutual recognition in the fields of migration and asylum law within the AFSJ, where intra-EU frontiers demarcate the borders of rights and responsibility for third-country nationals (TCNs). Its use is most prominent in relation to coercive measures, particularly forcible transfers of asylum seekers between Member States under Dublin III.1 But it also plays a (tacit) role in the removal of irregular migrants under the Return Directive framework, for example.2 Accordingly, that trust constitutes the basis for mutual recognition of decisions rejecting asylum claims and of expulsion orders when organising return operations. As a result, mutual trust has been said to be ‘of fundamental importance in EU law’,3 and treated as grounded in the founding values of the Union and as having constitutional significance.4 As in other areas, its basis is the presumption of compliance by Member States with their obligations under EU law, including fundamental rights, which the Court of Justice of the European Union (CJEU) considers rebuttable, though only

1

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This chapter is a deliverable of the MAPS Project, funded as Jean Monnet Network (2019–21) 599856-EPP-1–2018-1-IT-EPPJMO-NETWORK, Grant decision 2018–1606/001–001. Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless (recast) [2013] OJ L180/31 (Dublin III or DRIII). Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 (Return Directive). Opinion 2/13 EU:C:2014:2454, para 191; cf Violeta Moreno-Lax, ‘The Axiological Emancipation of a (Non-)Principle: Autonomy, International Law and the EU Legal Order’ in Inge Govaere and Sacha Garben (eds), The Interface between EU and International Law (Hart 2019). See, extensively, Christine Janssens, The Principle of Mutual Recognition in EU Law (OUP 2013); Ermioni Xanthopoulou, Fundamental Rights and Mutual Trust in the AFSJ: A Role for Proportionality? (Hart 2020).

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in extreme cases.5 Particularly after Opinion 2/13, the ‘exceptionalisation’ of fundamental rights has translated into an ‘obligation to presume’ such compliance, so that, ‘save in exceptional cases’, one Member State cannot check whether another has ‘actually, in a specific case’, observed its fundamental rights obligations.6 Yet, presumptions in law normally work as procedural devices to apportion the burden of proof, on grounds of procedural economy, where there are (good) reasons for generalising the well- or ill-foundedness of claims. Making presumptions (quasi-) absolute rules and assigning them substantive value of their own, regardless of whether or not they are grounded in reality, can lead to absurd (and arbitrary) outcomes. With this in mind, this chapter will track the implications of such objectivation of mutual trust in EU migration and asylum law and assess its compatibility with the founding values, especially ‘respect for human rights’, affirmed in Article 2 TEU, particularly within the Dublin system. The focus on mutual trust is justified by the fact that, unlike cooperation in civil and criminal matters,7 integration in the area of migration and asylum policy has not been explicitly grounded in a system of mutual recognition. There is no provision in the Lisbon Treaty equivalent to Articles 81 and 82 TFEU regarding cooperation in this field.8 Yet, mechanisms similar to mutual recognition in their workings and effects have nonetheless emerged, as the next sections will demonstrate. There is, however, an important feature that sets cooperation in immigration and asylum matters apart. In this area, a dual, if not contradictory, dynamic is at play: while the recognition of restrictive measures across the EU is seamless, near-automatic and practically unconditional, there is virtually no recognition of favourable measures giving extraterritorial validity to positive decisions and extending TCN rights across jurisdictions. This divergent dynamic – it is posited – is the result of the co-existence of two different forms of real (rather than presumed) dis-trust: vertical and horizontal. Vertical distrust refers to the lack of confidence in TCNs, perceived as potential abusers of the EU mobility regime, with that abuse being in turn considered as posing an existential threat to the AFSJ. Horizontal distrust, by contrast, reflects the lack of reciprocal confidence between Member States at inter-state level that seems to pervade migration and asylum decisions. These two types of practical distrust reinforce each other, with very tangible repercussions in the way TCN rights are restricted, rather than expanded, in the cross-EU operation of migration and asylum measures.

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For the first time the presumption was considered rebuttable; see Joined Cases C-411/10 and C-493/10 NS and ME EU:C:2011:865. 7 Opinion 2/13 (n 3) para 192. For a detailed account, see Chapters 3 and 13. See also TFEU art 67(3)–(4).

Mutual (Dis-)Trust in EU Migration and Asylum Law

The interplay between presumed (abstract) trust, as required by the case law of the CJEU, and the real (practical) distrust manifested at both the horizontal and vertical levels in day-to-day EU migration and asylum governance is what the following sections will unpack. Section 4.2 will look at mutual recognition/mutual trust in the migration field, while Section 4.3 will turn to mutual recognition/ mutual trust in relation to refugee protection. Section 4.4 will reach an overall conclusion regarding the insidious effects of this interplay on the fundamental rights of TCNs, and it will also unveil the collateral (yet essential) impact it has on the supremacy and uniform application of EU law.

4.2 Mutual Recognition and EU Migration Law In line with the dialectic underpinning horizontal/vertical, abstract/practical trust/ distrust, the next sections show how the directives conferring mobility rights on certain categories of economically active TCNs evince an embryonic system of attaching (very limited) transnational effects to the administrative (immigration) decisions of the Member State of ‘first admission’ that accord rights to TCNs. By contrast, the EU-wide validity of administrative (immigration) decisions that limit rights, whether in the form of expulsion orders or re-entry bans, is virtually automatic and uncontestable at inter-state level.

4.2.1

Mutual Recognition of Rights-Conferring Measures

Economically active TCNs have been excluded from free movement rights.9 Although they may be granted certain possibilities to move between Member States under Schengen rules and the legal immigration directives, their situation is qualitatively very different from that of economically active EU citizens. Such difference in treatment is not based on sound economic or market integration reasons, however.10 While the Schengen Convention (CISA) grants short-term travel rights,11 the legal immigration directives contemplate possibilities of longer-time mobility across the EU.

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See further Sara Iglesias Sánchez, ‘Free Movement of Third-Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice’ (2009) 15 ELJ 791. cf Anja Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of Inclusion’ (2012) 35 ELRev 455. Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders [2000] OJ L239/19 (CISA).

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Under Article 21 CISA, ‘aliens who hold valid residence permits issued by one of the Contracting Parties may, on the basis of that permit and a valid travel document, move freely for up to three months [within the Schengen area]’. Implicitly, this entails the recognition by all Schengen countries of the validity of residence permits issued by any one of them. No specific procedure has been established for this purpose. The second Member State may, however, refuse access to its territory if it deems that the TCN does not fulfil the entry conditions established in Schengen rules or appears ‘on the national list of [security] alerts of the Contracting Party concerned’.12 So, the mutual recognition exercise is not based on immediate and unconditional trust in the residence permit decisions of all Schengen partners, and the related extension of rights depends not only on the decision by the Member State issuing the permit but also on the (subsequent and independent) decision on admission by the Member State that the TCN seeks to enter. These are two separate sovereign decisions adopted by two different Member States – rather than a single decision issued by the first Member State that is then simply recognised and implemented by the second Member State, as happens under the EAW system and other (explicit and more) advanced mutual recognition regimes within the AFSJ.13 Besides short-term travel rights, certain categories of TCNs may also be entitled to longer-term mobility within the EU. This is the case under (some of) the first admission directives14 regulating the entry into the Union of students, researchers,15 highly qualified workers,16 and intra-corporate transferees,17 as well as under the Long-Term Residents (LTR) Directive18 governing the conditions for the settlement

12 13

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18

CISA art 21(1). See eg Valsamis Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 CMLRev 1277; Wouter van Ballegooij, The Nature of Mutual Recognition in European Law (Intersentia 2015). This excludes seasonal workers under Directive 2014/36/EU and holders of single permits under Directive 2011/98/EU, who are typically perceived as low- or semi-skilled labour and the facilitation of whose movement is understood more as a security risk than an economic asset. Since 2016, the regime governing students and researchers has been unified in Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing [2016] OJ L132/21 (Students/Researchers Directive). Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of thirdcountry nationals for the purposes of highly qualified employment [2009] OJ L155/17 (Blue Card Directive). Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intracorporate transfer [2014] OJ L157/1 (ICT Directive). Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L 16/44 (LTR Directive).

Mutual (Dis-)Trust in EU Migration and Asylum Law

of established (and presumably well integrated) TCNs in another Member State. Yet under this system, too, the mutual recognition of national decisions is lacking. Researchers, for instance, may be granted both short-term and long-term mobility rights if they have been authorised by a first Member State to carry out part of their activity in one or more other Member States for a period of, respectively, up to or longer than six months in any one-year period per Member State.19 The exercise of these rights is subject to a process of notification to, and possible objection by, the second Member State(s), which closely resembles the process of initial authorisation by the first Member State foreseen in the directive. So, just as the first Member State may refuse entry on such grounds as the fact that the researcher is not in possession of appropriate sickness insurance or lacks sufficient resources to cover subsistence costs, the second Member State(s) may undertake their own evaluation at the point of mobility and refuse access to their territory on the same basis.20 Students can also transfer their residence from one Member State to another following a very similar process. They will need to comply with the requirements for access to the second Member State, which essentially replicate the conditions of entry to the first Member State.21 The same goes for blue card holders, to whom a comparable procedure applies, though they are treated more favourably in substantive terms.22 After being legally resident in a first Member State for eighteen months, they are entitled to move to a second Member State for highly qualified employment, but have to apply to the second Member State for a (separate) blue card, with the possibility that their application might be rejected, as the second Member State will check whether the conditions under which the new blue card may be issued – which are identical to those applicable to the initial blue card – are met.23 Even intra-corporate transferees, who acquire mobility rights as soon as they receive their initial permit, must satisfy the authorities of a second Member State that they fulfil the conditions for intra-EU transfers. Where they move for only a short period to work in another entity established in a second Member State but ‘belonging to the same undertaking or group of undertakings’ – thus without changing employer – a request for authorisation must be made to the second Member State, which can object.24 Where they move for a longer period, the second Member State has the choice either to follow the same process as for shortterm mobility requests or to require a separate application for long-term mobility,

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23

20 Students/Researchers Directive, arts 28(1), 29(1). ibid arts 28(3)–(9), 29(2)–(7). ibid art 31. See eg Blue Card Directive, arts 14–16 on equal treatment, family rights and access to LTR status. 24 ibid art 18(2), referring back to art 5 on criteria for admission. ICT Directive, art 21.

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which is subject to practically the same conditions as the initial permit granted by the first Member State.25 The mobility of long-term residents who have spent more than five years in a first Member State and obtained LTR status under EU law is also conditional on a separate application being made to the second Member State under the terms of the LTR Directive.26 However, this is the only situation in which EU rules prevent a complete double examination of the applicant’s eligibility. The second Member State cannot, for instance, impose its full range of integration measures if incoming LTR permit holders have already fulfilled the integration requirements of the first Member State.27 This goes some way to acknowledging a certain ‘rule of reason’ – similar to that governing the free movement of goods28 – allowing limited avoidance of double burden situations, but it falls far short of comprehensive recognition of the equivalence of Member State rules and decisions.29 It does not prevent the second Member State from checking anew that the TCN has sufficient resources, sickness insurance or appropriate language proficiency. The right to settle in the second Member State can also be limited by quotas or labour preference tests.30 What the LTR Directive does, in the end, is simply harmonise the criteria for issuing LTR permits and establish a mechanism that eases intra-EU mobility for permit holders, so that, for instance, they cannot be asked to return to their country of origin to apply from there for permission to settle in a second Member State. But the directive allows for only very limited recognition of the validity of the rules and decisions of the first Member State by the (potential) second Member State(s), whose wide discretion leaves them free not to execute the decisions of the first Member State within their jurisdictions. So, overall, the regime put in place by the directives on legal immigration facilitates intra-EU migration only to a limited extent, as the portability of rights is not automatically accepted in the absence of express provision for the mutual recognition of admission and residence decisions. The idea is rather that harmonisation ‘promotes mutual confidence’ between Member States,31 in a way that, perhaps in the future, may lead to the establishment of a regime of mutual recognition of admission and residence decisions with validity throughout the EU. But this is not yet the case.

25 28

29 30

26 27 ibid art 22. ibid art 15. ibid art 15(3). See Nathan Cambien, ‘Mutual Recognition and Mutual Trust in the Internal Market’ (2017) 2 European Papers 93; more generally, Kenneth Armstrong, ‘Mutual Recognition’ in Catherine Barnard and Joanne Scott (eds), The Law of the Single European Market: Unpacking the Premises (Hart 2002). Following the logic of Cassis de Dijon, Case C-120/78 Rewe-Zentral EU:C:1979:42. 31 LTR Directive, art 14(3)–(4). ibid recital (17) (emphasis added).

Mutual (Dis-)Trust in EU Migration and Asylum Law

This fragmentation of the mobility regime defies market logics, but there are concrete reasons that buttress the underlying policy choice. The seemingly irrational choice – at least from an economic perspective – can be attributed to the two types of distrust pointed out above. Horizontal distrust is manifested in the legal reservation contained in Article 79 TFEU, according to which Member States’ (sovereign) right (under international law) to determine the volumes of admission of TCNs to their territories for employment purposes lies with each one of them separately from the EU and independently of each other as a matter of primary law.32 This reservation has been transposed into secondary law,33 and it reflects the extent to which migration matters are politically sensitive and perceived as impinging on the core of national autonomy. It is arguably this perception that, since the early years of EU integration, has led to the exclusion of TCNs from freedom of movement and their simultaneous ‘securitisation’ as a potential threat to the Single Market.34 Discussions on the need to approximate domestic rules on the treatment of TCNs began in the 1970s in the context of negotiations on the removal of internal frontiers, with the emphasis being placed on control and the perceived security deficit that the transfer of checks to the common external borders would entail. Non-EU nationals became the object of ‘compensatory’ measures, first introduced in the Schengen instruments with the understanding that free movement rights benefit nationals of EU Member States only.35 The Treaty of Amsterdam, which introduced the notion of an AFSJ flanking the internal market, confirmed that approach, giving the Council unfettered discretion to define ‘the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States’.36 The Treaty of Lisbon has inherited this rationale.37 And even the Charter distinguishes between EU citizens and migrants in relation to the allocation of free movement rights. While ‘[e]very citizen of the Union has the right to move and reside freely within the territory of the Member States’, ‘freedom of movement and residence may be granted … to nationals of third countries’ through legislative acts.38 This persistent exclusion of TCNs from free movement rights thus explains why mechanisms of control have been maintained as a means of detecting and policing

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35

36 38

33 TFEU art 79(5). See Blue Card Directive, art 6; Students/Researchers Directive, art 6. See eg Jef Huysmans, ‘The EU and the Securitization of Migration’ (2000) 38 Journal of Common Market Studies 751. Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders [2000] OJ L 239/13 (Schengen Agreement), preamble. 37 TEC (Amsterdam consolidated version) art 63(4). TFEU art 79(2)(b). Charter of Fundamental Rights of the European Union [2010] OJ C 83/389 (CFR), art 45(1)–(2) (emphasis added).

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whether/when mobility rights have been correctly applied. However, a system of home country control, similar to that applied to the free movement of goods, could have been introduced in order to avoid multiple regulatory burdens and lengthy procedures in several Member States. Why this has not been the case can only be attributed to an absence of trust both in the control mechanisms of fellow Member States and in TCNs themselves.

4.2.2

Mutual Recognition of Rights-Restricting Measures

Distrust of TCNs is manifested not only in their exclusion from free movement rights but also in their representation as a threat to the process of European integration.39 Because a border-free market may potentially facilitate the movement not only of law-abiding agents but also of criminals and ‘illegal immigrants’, EU border and migration controls have been reframed as a security question – the uncontrolled movement of TCNs being portrayed as a challenge to public order and national security on a par with terrorism, drug trafficking and money laundering.40 So, in the construction of an ‘area’ without internal borders,41 controls over the movement of TCNs, far from being abolished, have been merely delocalised to the other (juxtaposed) ‘area’ of freedom, security and justice that flanks the Single Market.42 Whereas the latter requires the removal of borders to allow the free movement of persons that only EU citizens enjoy in full, the former is ‘premised upon’ the existence of those same borders,43 which – after the elimination of intra-EU frontiers – need to be re-converted into alternative mechanisms that secure an equivalent level of control over TCNs. Consequently, the adoption of alternative mechanisms of control over the movement of TCNs, ‘at all stages’, has become a key priority of the EU, especially through ‘enhanced measures to combat[] illegal immigration’.44 It was in this context that, in the Expulsion Decisions Directive (EDD), a mechanism of mutual recognition of expulsion decisions emerged as the only elaborate example of a structure based (explicitly) on horizontal trust between the Member

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40 41 43

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See eg JPH Donner, ‘Comments on the Article by Fernhout’ in JA Winter and others (eds), Reforming the Treaty on European Union: The Legal Debate (Kluwer 1996) 402: ‘[r]e-enforcing the rights of immigrants and criminals will not result in an ever closer Union, but rather in the opposite’. Schengen Agreement arts 7, 17. See CISA preamble. 42 TFEU art 26(2). TEU art 3(2). J Crowley, ‘Differential Free Movement and the Sociology of the “Internal Border”’ in Elspeth Guild and Carol Harlow (eds), Implementing Amsterdam: Immigration and Asylum Rights in EC Law (Hart 2001) 16. TFEU art 79. On the main measures and their compatibility with fundamental rights, see Violeta Moreno-Lax, Accessing Asylum in Europe (OUP 2017).

Mutual (Dis-)Trust in EU Migration and Asylum Law

States in the migration policy field.45 The European Pact on Immigration and Asylum provided political momentum, calling for ‘an expulsion decision taken by one Member State [to be] applicable throughout the European Union’.46 The Schengen Information System (SIS) was envisaged as the vehicle of application.47 Within that framework, an ‘alert’ for an expulsion decision entered in the SIS would oblige other Member States to prevent the TCN concerned from entering/ re-entering or remaining within EU territory. The idea has further evolved into an integrated regime of ‘entry bans’,48 which are given ‘a European dimension’, making them valid across the territory of all Member States, which are obliged to recognise and implement them.49 The rationale – as in other mutual recognition schemes within the AFSJ – is ‘the need to ensure greater effectiveness in enforcing expulsion decisions and better cooperation between Member States’.50 The preoccupation with effectiveness and speed is illustrated by a specific duty of cooperation that binds Member States to ‘make use of all appropriate means’ to execute deportations, including the sharing of all relevant documents and information required ‘to certify the continued enforceability of the decision by the fastest appropriate means’.51 And, as an incentive, where the enforcement of removal decisions generates costs, the directive provides that Member States shall compensate each other for any ‘financial imbalances’ that may result from their cooperation.52 With this objective of swiftness and efficiency in mind, the overall purpose of the directive is to enable the transnational recognition of an expulsion decision adopted by an issuing Member State against a TCN found on the territory of a different enforcing Member State following an SIS alert.53 Although the adoption of the expulsion decision is governed by the applicable rules of the issuing Member State, any subsequent enforcement decisions ‘shall be implemented according to the applicable legislation of the enforcing Member State’.54 So, while the traditional

45

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Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals [2001] OJ L149/34 (EDD). Council of EU, ‘European Pact on Immigration and Asylum’ doc 13440/08 (24 September 2008) 8. For contextualisation, see John O’Dowd, ‘Mutual Recognition in European Immigration Policy: Harmonised Protection or Coordinated Exclusion?’ in Flora ANJ Goudappel and Helena S Raulus (eds), The Future of Asylum in the European Union (TMC Asser Press 2010). Regulation (EC) 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System [2006] OJ L381/4 (SIS II). Return Directive, arts 2(6), 11. For an analysis, see Paulien de Morree, ‘Mutual Trust in Migration Law: The Returns Directive and Mutual Recognition of Entry Bans’ in Hemme Battjes and others (eds), The Principle of Mutual Trust in European Asylum, Migration and Criminal Law: Reconciling Trust and Fundamental Rights (Forum 2011). 50 Return Directive, recital (14). EDD recital (3) (emphasis added). 52 ibid art 6 (emphasis added). ibid art 7. 54 ibid art 1(1); see also Return Directive, recital (18). ibid art 1(2) (emphasis added).

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exequatur procedure is done away with, it not does not result in the full embracement of the ‘home country’ rule paradigm with regard to the execution part of the operation, which is somewhat re-nationalised by reference to the domestic laws (and independent EU obligations) of the enforcing Member State, which will issue its own, separate (sovereign) ruling. No grounds are mentioned on which the enforcing Member State may refuse the execution of an expulsion decision adopted by the issuing Member State, although the general renvoi to ‘the applicable legislation of the enforcing Member State’ obviates the need for a list of such grounds, since national discretion remains intact. By contrast, where the expulsion decision is motivated by security reasons, based either on the TCN having been convicted of a crime punishable by incarceration for at least one year,55 or when there are otherwise ‘serious grounds for believing’ that the TCN ‘has committed a serious criminal offence’, or where there is ‘solid evidence of his intention’ to commit such offences – whatever these terms may be taken to mean and regardless of their implications for the principle of legality and the presumption of innocence – prior to their removal, any residence permit the TCN may hold in any Member State should first be cancelled.56 However, the liberty to grant (or maintain) a residence permit for a TCN subject to an expulsion decision issued by another Member State is not completely eliminated.57 This is why a mechanism of consultation between the Member State that issued the expulsion order, the enforcing Member State and the Member State that granted or intends to grant the permit has been set up.58 Consideration must be given to the security interests of the Member States(s) involved;59 any objections they raise will have pan-EU relevance under the Schengen acquis, and their decisions to issue an expulsion order, accompanied by an entry ban, will normally be accorded EU-wide, cross-national effects. Failure to engage in the consultation process with diligence may lead to the Member State that issued the alert being placed under an obligation to withdraw it, which will have to be inserted in the national list of SIS alerts instead, signalling security threats affecting only national interests without full extraterritorial implications.60 The TCN concerned may then rely on the result of the consultation – which is deemed to produce ‘legal effects’ – in the national courts of the Member State that issued the alert with a view to having it withdrawn.61

55 57 59 61

56 cf Case C-456/14 Orrego Arias EU:C:2015:550. EDD art 3(1)(a), final indent. 58 cf Return Directive, art 6(2). As per CISA art 25, still in force. 60 Return Directive, art 11(4). Case C-240/17 E EU:C:2018:8, para 2. ibid Ruling, para 3. What is not clear is what happens in the event of a conflict between the Member States.

Mutual (Dis-)Trust in EU Migration and Asylum Law

In fact, the rights of the individual cannot be disregarded by any of the Member States involved – at least, in principle.62 On the one hand, the issuing Member State must ensure that expulsion decisions are adopted in accordance with the safeguards contained in the ECHR63 and the Refugee Convention (CSR);64 they must pay particular attention to the prohibition of torture and to the right to family life.65 And, although not mentioned, as it post-dates the directive, the EU Charter, in the current post-Lisbon context, must be taken into account as well. On the other hand, the enforcing Member State, although not allowed to assess whether the issuing Member State has complied with its obligations, is separately bound to provide remedies under its national law against any enforcement measure it may independently adopt to implement the expulsion order.66 So, in the end, it appears that, rather than there being a (real) mechanism of mutual recognition, the system decouples the (original) expulsion order issued by one Member State (the validity of which is never contested, nor contestable, and which the other Member States must acknowledge and act upon), from the (subsequent) decision of another Member State to execute it, which, from the perspective of the TCN concerned, amounts to a second order for their removal from the EU, this time under the domestic law of the expelling Member State (and the harmonised rules of the Return Directive). Therefore, instead of a single decision ‘travelling’ from one jurisdiction to another and providing the issuing Member State with (extraterritorial) enforcement capacity through the executing Member State,67 there is a sequence of separate, complementary decisions consequent upon a SIS alert issued by either one or the other, or even by a third Member State, which is taken at face value and automatically ‘internalised’ by all Schengen countries. What is mutualised and immediately recognised is the SIS alert, rather than any specific, pre-existing decision to expel – the EDD regime does not specifically address the age of the alert, its proportionality or the circumstances under which it was issued. This is probably why the directive is rarely relied upon and has produced virtually no case law.68 Ultimately, what counts is the SIS hit detected by any country connected to the system; it is the SIS that sets the transnational removal trail in motion and creates

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68

63 EDD art 3(2). European Convention on Human Rights [1950] ETS 5 (ECHR). Convention Relating to the Status of Refugees [1951] 189 UNTS 150 (CSR). EDD recital (4). ibid art 4; see also Return Directive, arts 13–18 on remedies and pre-removal detention. As is typical within the EAW scheme, for example. For a critique, see Theodore Konstadinides, ‘The Perils of the “Europeanisation” of Extradition Procedures in the EU: Mutuality, Fundamental Rights and Constitutional Guarantees’ (2007) 14 MJ 179. For a similar conclusion, see ECRE, ‘Mutual Recognition of Positive Asylum Decisions and the Transfer of International Protection Status within the EU’ (November 2014) 10–11.

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a mechanism of automatic ‘collectivised recognition’ based on (virtually absolute) trust. To counterbalance any ‘excess trust’, the SIS Regulation foresees that the competent authorities in any of the SIS member countries are bound by the obligation to allow the ‘data subject’ to ‘access, correct, delete or obtain information in connection with an alert relating to him’.69 SIS members undertake ‘mutually to enforce [any ensuing] final decision’70 – though no rules, criteria or procedure have been established for this purpose. The control on such trust is thus shifted to the TCN, who, in principle, may invoke against the issuing and/or the executing Member State any fundamental rights issues that could result from enforcement of the expulsion measure(s) in their respective jurisdictions. Thereby, a transfer is operated from the horizontal level – at which ex ante unconditional (or ‘blind’71) trust is manifested between Member States detecting a SIS hit – to the vertical level – at which trust is withheld ex post and may be resisted by the individual affected. In principle, there are no explicit limits on the rights that may be invoked in challenging the expulsion – though not all SIS members are also bound by the harmonised Return Directive guarantees.72 This is important because, as Section 4.3 shows, under the Dublin system forcible transfers of asylum claimants between Member States are subject to more stringent criteria to resist (intra-EU) removals and can do so on selected (and very exceptional) grounds only.

4.3

Mutual Recognition and EU Asylum Law

Exclusion from free movement rights and securitisation of movement also affects applicants for international protection. Since protection should benefit only genuine refugees legitimately entitled to seek it,73 mechanisms have emerged to set

69 70

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SIS II, art 43(1). ibid art 43(2) (emphasis added). On related problems, see Evelien Brouwer, Digital Borders and Real Rights (Brill 2008) esp 526–27. Koen Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CMLRev 805. eg United Kingdom and Ireland; see Return Directive, recitals (26), (27). See recital (2) common to Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9 (QD); Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection [2013] OJ L180/96 (RCD); Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/60 (APD); and DRIII (emphasis added).

Mutual (Dis-)Trust in EU Migration and Asylum Law

them apart. The notions of asylum seeker and asylum applicant play a key role in this regard.74 Despite formal acceptance in EU law that status determination is a declaratory act and that a person is a refugee as soon as they meet the Refugee Convention definition,75 the term has been used, in practice, to withhold related rights, which are fully granted only after completion of the determination procedure.76 Most importantly, this approach has led to the inclusion of asylum seekers in the general category of TCNs for migration management purposes, with the consequence that, prior to lodging an application (in EU territory), they are treated as ‘illegal migrants’ as opposed to putative refugees, unless they are in possession of the requisite documentation. And, because there is no system of humanitarian visas or other specific means to allow entry to the Schengen zone for the purposes of requesting asylum on arrival,77 up to 90 per cent of those who eventually become recognised as refugees enter the EU clandestinely.78 The end result is the structural securitisation of asylum flows,79 which makes the intended recipients of international protection also the object of the ‘fight against illegal immigration’. A significant ramification of the securitisation of asylum flows is a pervasive distrust of potentially ‘bogus’ claimants within the CEAS,80 which has had an impact on how mutual recognition tools have been designed and employed on the ground. As will become clear in Sections 4.3.1 and 4.3.2, the overall tendency towards deterrence and restriction marking EU migration policy is equally apparent in EU asylum law.81 While the mutual recognition of rights-granting decisions between Member States is under-developed, the mutual recognition of rightsrestricting decisions has been given EU-wide endorsement and near-automatic effects.

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75 CISA art 1; DRIII art 2(c); APD art 2(c); RCD art 2(b). QD recital (21). For a warning against this approach, see James C Hathaway, ‘What’s in a Label?’ (2003) 5 EJML 1. For a detailed critique, see Violeta Moreno-Lax, ‘The Added Value of EU Legislation on Humanitarian Visa: Legal Aspects’, Annex I, Humanitarian Visas: European Added Value Assessment Accompanying the European Parliament’s Legislative Own-Initiative Report (Rapporteur: Juan Fernando López Aguilar) (EP 2018). European Parliament resolution of 11 December 2018 with recommendations to the Commission on Humanitarian Visas (2018/2271(INL)), recital E. cf Valsamis Mitsilegas, Violeta Moreno-Lax and Niovi Vavoula (eds), Securitising Asylum Flows (Brill 2020). See further Violeta Moreno-Lax, ‘Life after Lisbon: EU Asylum Policy as a Factor of Migration Control’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Justice and Security Law: After Lisbon and Stockholm (Hart 2014). See eg Marten den Heijer, Jorrit J Rijpma and Thomas Spijkerboer, ‘Coercion, Prohibition, and Great Expectations: The Continuing Failure of the Common European Asylum System’ (2016) 53 CMLRev 607.

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4.3.1

Mutual Recognition of Rights-Conferring Measures

The mutual recognition of positive asylum decisions has been considered a possible intermediary step82 towards the full realisation of the objective of establishing ‘a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union’.83 And this EU-wide validity has been interpreted as entailing the possibility of transferring acquired rights, after status recognition, between different Member States.84 But, so far, little progress has been made in this regard. The reality is rather that the extraterritorial effects of positive asylum decisions by one Member State are only marginally recognised by other CEAS partners. For example, under the current Visa Regulation, ‘refugees … who reside in a Member State and are holders of a travel document issued by that Member State … shall … be exempt from the visa requirement’ and be granted visa-free travel for up to three months85 – as is normally the case with non-refugee Schengen visa grantees.86 This, in fact, involves an implicit recognition by the other Member States of the validity of the decision adopted by one of them recognising the refugee status of the person concerned and the attachment of short-term mobility rights to that recognition. However, this mechanism arguably does no more than honour obligations directly stemming from the Refugee Convention, which all Member States and Schengen partners have adhered to and the CEAS must abide by.87 Indeed, under the Refugee Convention, contracting states are under a legal obligation to issue refugees with travel documents in conformity with the Convention and to recognise those issued by other contracting states for the purpose of admitting the refugees concerned.88 This, therefore, implies mutual recognition by all parties of the validity of decisions conferring refugee status.89 However, the scheme does not

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See eg Commission, ‘Action Plan Implementing the Stockholm Programme’ COM (2010) 171 final, 55. ‘Tampere European Council 15 and 16 October 1999: Presidency Conclusions’ para 15 (emphasis added); TFEU art 78(2)(a)–(b). The Stockholm Programme: An open and secure Europe serving and protecting citizens [2010] OJ C115/1, para 6.2.1. Council Regulation (EC) 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [2001] OJ L81/1, art 1(1)–(2), as amended by Council Regulation (EC) 1932/2006 of 21 December 2006 [2006] OJ L405/23. This arrangement reproduces the content of the European Agreement on the Abolition of Visas for Refugees [1959] ETS 31. TFEU art 78(1); CFR art 18. CSR art 28, schedule para 7; see also Jens Vested-Hansen, ‘Article 28 and Schedule’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees (OUP 2011). See also UNHCR, ‘Extraterritorial Effect of the Determination of Refugee Status (17 October 1978), www.unhcr.org/uk/excom/exconc/3ae68c4447/extraterritorial-effect-determinationrefugee-status.html.

Mutual (Dis-)Trust in EU Migration and Asylum Law

make it clear whether this entails the transfer of full responsibility for ensuring that the protection obligations attaching to refugee status are honoured as well.90 The Convention’s Schedule establishes only that where a recognised refugee settles in the territory of another contracting party, responsibility for issuing a new travel document passes to the new state of residence.91 But it does not indicate under what conditions that new settlement can take place or whether – and if so, at which point and to which extent – any other responsibilities are also transferred. A Council of Europe agreement, ratified by eleven EU Member States, goes some way to clarifying these matters.92 Although the agreement does not award refugees a right to move between the territories of the contracting parties, it regulates some aspects of their situation in the event they are authorised to take up residence in the territory of a party other than the one that recognised their status. Accordingly, under Article 2 of the agreement, responsibility for catering to the rights attached to refugee status is supposed to be transferred after two years of continuous and actual residence following admission to the second state. At that point, the second state is required to honour – presumably in their entirety – the ‘rights and advantages flowing from the Geneva Convention’.93 No similar scheme exists under EU law. The current rules establish that the Member State responsible for examining an asylum application is also responsible for guaranteeing the protection rights attaching to refugee or subsidiary protection (SP) status once the application has been granted. Beneficiaries of international protection are not free to move and take up residence in another Member State unless they obtain LTR status under (the separate regime of) the LTR Directive.94 Given that the two statuses are mutually exclusive, a person holding LTR status would move as an LTR permit holder rather than as a refugee or beneficiary of subsidiary protection, as the rights attached to international protection are not yet transferable between Member States.95 What is more, if the person concerned were to lodge a new asylum application in the second Member State, that second Member State would be entitled to treat the claim as inadmissible and reject it 90

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In fact, contracting parties have not interpreted these provisions as entailing such a transfer. See Steve Peers, ‘Transfer of International Protection and European Union Law’ (2012) 24 International Journal of Refugee Law 527. Schedule, para 11. The UNHCR has noted that no new status determination procedure should take place at this point; see ‘Note on the Extraterritorial Effect of the Determination of Refugee Status under the 1951 Convention’ UN doc EC/SCP/9 (24 August 1978) para 32. European Agreement on Transfer of Responsibility for Refugees [1980] ETS 107. Parliamentary Assembly of the Council of Europe, ‘Explanatory Report’ doc 3703, para 31. See further Sonja Boelaert-Suominen, ‘Non-EU Nationals and Council Directive 192003/109/EC on the Status of Third-Country Nationals Who Are Long-Term Residents’ (2005) 42 CMLRev 1011. cf Nina M Lassen and others, ‘The Transfer of Protection Status in the EU, against the background of the common European asylum system and the goal of a uniform status, valid throughout the Union, for those granted asylum’ final report D.JAI/A2/2003/001 (EC 2004).

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without any assessment of the merits.96 Consequently, under the CEAS, a positive decision on an asylum application by the first Member State is accorded some form of recognition by the second Member State, but only as a basis for rejecting a subsequent claim without review. So, instead of being a vehicle to extend the claimant’s rights – so that they produce (extraterritorial) effects in the second Member State – the existence of a positive decision by a first Member State is relied upon to relieve the second Member State of any responsibility to honour the rights concerned.97 The (implicit) mutual recognition scheme at play here is therefore used to curtail, rather than expand, the (EU) rights of beneficiaries of international protection, denying them EU-wide cross-national force.

4.3.2

Mutual Recognition of Rights-Restricting Measures

It is the (implicit) mutual recognition of negative asylum decisions that is predominant within the CEAS. If a person’s application has been rejected by a first Member State, a subsequent application in any other Member State can be considered inadmissible and unfounded.98 On the basis of that negative decision, the second Member State can decline to examine the substance of the application and, in so doing, it effectively recognises (without any specific formalities, procedures or guarantees) the legal validity of the (negative) decision adopted by the first Member State. As a result, according to Dublin transfer rules, the first Member State is under a duty to take back the person concerned – and proceed with their expulsion under the Return Directive.99 Indeed, the Dublin system of allocating responsibility for the examination of international protection claims among participating Member States and Schengen partners is based on the assumption that ‘all [these countries] respecting the principle of non-refoulement, are considered as safe … for TCNs’, so that inter-state transfers of asylum applicants through the take back or the take charge procedures100 are presumed to respect ‘the full and inclusive application of the Geneva Convention’.101 The NS ruling takes this presumption as the basis for the principle of mutual trust (rather than mutual recognition as such).102 According to the CJEU, ‘[i]t is precisely because of that principle … that the EU legislature adopted [the Dublin] Regulation’, pursuing the ‘principal objective of … speed[ing] up the handling of claims’.103 This is supposed to be for the benefit not only of participating States, but also of the asylum seekers themselves, considering the increase in legal certainty that a clear system of allocation of responsibility is deemed to entail.104 96 97

98 102

APD art 33(2)(a). Elspeth Guild and others, ‘Enhancing the Common European Asylum System and Alternatives to Dublin’ EP study 519.234 (2015) 43. 99 100 101 APD art 33(2)(d). DRIII art 23. ibid arts 20–27. ibid recital (3). 103 104 NS (n 5) para 78. ibid para 79. ibid.

Mutual (Dis-)Trust in EU Migration and Asylum Law

In principle, trust under these arrangements ‘must be assumed’, on the grounds that – regardless of practical realities and vast differences in recognition rates across the EU105 – ‘the treatment of asylum seekers in all Member States complies with … the Charter, the Geneva Convention and the ECHR’.106 It is only where an applicant adduces that there are ‘substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter … [that] the transfer would be incompatible with that provision’.107 Other ‘minor infringements’ – however these may be defined – are not considered serious enough to rebut the presumption, or to justify exoneration from Dublin obligations.108 So, while the presumption of compliance with fundamental rights, justifying mutual trust, is rebuttable,109 it is only in the most extreme situations that it can be overturned. And the consequence of rebutting the presumption is not the halting of the related Dublin transfer. Rather, ‘the Member State which should carry out that transfer must continue to examine the [responsibility] criteria … to establish whether one of the [other criteria listed] enables another Member State to be identified as responsible’.110 It is only if an alternative country cannot be identified within a ‘reasonable time’ that the Member State in which the applicant is present must assume responsibility.111 The requirement of systemic flaws as the sole relevant source of Article 4 CFR risks was vehemently defended in Abdullahi as ‘the only way’ in which an asylum applicant could challenge a Dublin transfer.112 The judgment also appeared to place the onus on the applicant to plead the existence of systemic deficiencies, rather than it being incumbent on the authorities concerned to establish them ex officio on the basis of public information of which ‘they cannot be unaware’.113 Speed and effectiveness in the handling of claims were, again, mentioned as the ‘principal objective’ of this scheme,114 emphasising the ‘organisational rules governing the relations between the Member States’, rather than the fulfilment of their fundamental rights obligations, as the motivating factor.115

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For an evaluation of EUROSTAT and related evidence, see F Maiani, ‘The Reform of the Dublin III Regulation’ EP study 571.360 (2016); Elspeth Guild, Cathryn Costello and Violeta MorenoLax, ‘Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and of Greece’, EP study 583.132 (2017). 107 108 NS (n 5) para 80. ibid paras 86, 94 (emphasis added). ibid paras 85, 83. 110 111 ibid paras 99, 104. ibid para 96. ibid paras 97, 98. Case C-394/12 Abdullahi EU:C:2013:813, paras 60, 62 (emphasis added), confirming Case C-4/11 Puid EU:C:2013:740. NS (n 5) para 94, in line with ECtHR, MSS v Belgium and Greece, App No 30696/09 (ECtHR, 21 January 2011); cf Violeta Moreno-Lax, ‘Dismantling the Dublin System: M.S.S. v Belgium and Greece’ (2012) 14 EJML 1. 115 Abdullahi (n 112) paras 53, 59. ibid para 56.

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It is only since the 2013 reform that the rights of claimants have gained some prominence. Ghezelbash made it clear that the right to an effective remedy in Article 27 of the recast Regulation includes the possibility for claimants to contest the incorrect application of the responsibility criteria to resist transfer – regardless of whether or not there are systemic flaws posing an Article 4 CFR risk.116 For the Court, the rationale was not so much the legally binding force of the Charter, in the post-Lisbon landscape, but rather the policy choice of the EU legislature to ‘enhance’ the rights of asylum applicants, ‘guaranteeing [their] involvement in the process for determining the Member State responsible’.117 Instead of ‘simply governing relations between Member States for the purpose of determining the Member State responsible’, the recast Regulation is regarded as aiming to ‘involve asylum seekers in that process’.118 This is why ‘[a] restrictive interpretation of the scope of the remedy provided in Article 27 [DRIII] might … thwart the attainment of that objective’.119 Although the introduction of a third player – namely, asylum applicants subject to Dublin transfers – could be expected to have an impact on the mutual confidence equation, it has been said to have ‘no bearing on the principle of mutual trust’ as previously understood.120 For the Court, if it is found that an error has been made in the process of allocating responsibility, ‘such a finding would simply mean that the Member State to which the applicant was to be transferred was not the Member State responsible within the meaning of the criteria’,121 since the mutual confidence embedded in the Dublin provisions relates to the correct application of the relevant rules.122 The fact that the correct application of the relevant rules, as the system has been designed, is to be guaranteed ex post by the asylum applicant resisting transfer in their individual case, rather than ex ante by the Member States checking compliance with the rules in good faith, is not seen as a structural failing in the configuration of the regime. Dublin, with its intrinsically punitive approach towards the allocation of responsibility for asylum claims, creates perverse incentives. The ‘authorisation principle’ underpinning the so-called country of first entry rule, if correctly applied, would entail a concentration of responsibility in the Member States placed at the external borders of the EU – an outcome hardly compatible with the principle of solidarity and fair sharing of responsibility introduced in Article 80 TFEU. Jafari makes this clear. The Dublin system is ancillary to the operation of Schengen

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Case C-63/15 Ghezelbash EU:C:2016:409, para 37, confirming Case C-155/15 Karim EU:C:2016:410. 118 119 Ghezelbash (n 116) para 46. ibid para 51. ibid para 53. 121 ibid para 55. ibid. See also Case C-670/16 Mengesteab EU:C:2017:587; Case C-201/16 Shiri EU:C:2017:805; Case C-360/16 Hasan EU:C:2018:35; Case C-647/16 Hassan EU:C:2018:368.

Mutual (Dis-)Trust in EU Migration and Asylum Law

cooperation, and it is therefore premised upon the idea that ‘each Member State is answerable to all the other Member States for its actions concerning the entry and residence of third-country nationals’ (including refugees).123 This is why, if they fail in sufficiently controlling (their section of) the EU external border, they ‘must bear the consequences thereof’.124 Through this lens, Dublin, as a whole, is a system of ‘organised distrust’ that operates as a palliative, remedying ex post the border surveillance deficiencies of frontline countries that fail to prevent the irregular entry of unwanted migrants. However, both the system’s rules and the Court itself forget that those same countries are under an obligation not to refuse entry by virtue of their EU and international law commitments, in particular the principle of non-refoulement. The Court goes even further in Jafari and establishes that ‘an entry authorised in that context’ (which it links, however, to ‘humanitarian grounds’ rather than any legal obligations) ‘cannot be regarded as an entry [in line with Schengen rules]’;125 it rather remains an irregular entry, ‘irrespective of whether [it] was tolerated or [expressly] authorised’.126 Doing otherwise, according to the Court, would unduly absolve the Member State of its Schengen duties and, therefore, ‘be inconsistent with the general scheme and objectives of the Dublin III Regulation’ – again ignoring the pre-eminence of the non-refoulement principle as primary EU law and customary international law, if not indeed a jus cogens norm.127 This understanding of transfers as punishment for non-compliance with border control obligations (disconnected from the principle of non-refoulement) is at the core of the Dublin rules. Priority is given to the realisation of the Schengen objectives through an exclusionary conception of the AFSJ that ‘[t]he Union shall offer its citizens’.128 This is why, despite the new avenues for resisting transfer on grounds other than ‘systemic flaws’ opened up by Ghezelbash, subsequent case law has made clear that only very ‘exceptional situations’ – beyond the incorrect application of the Dublin criteria – can preclude forcible removal.129 Only potential breaches of Article 4 CFR reach that threshold. Having regard to the absolute character of that provision and its connection to human dignity,130 CK abandoned the link to ‘systemic deficiencies’131 and concluded that a transfer could ‘in itself’, in individual cases, result ‘in a real risk of inhuman or degrading treatment … irrespective of the quality of the reception and the care available

123 124 127

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Case C-646/16 Jafari EU:C:2017:586, para 88. 125 126 ibid. ibid para 82. ibid para 92. ibid paras 83, 84 89; cf Cathryn Costello and Michelle Foster, ‘Non-Refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test’ (2015) 46 Netherlands Yearbook of International Law 273. 129 TEU art 3(2) (emphasis added). Case C-578/16 PPU CK EU:C:2017:127, para 95. 131 ibid paras 59, 91–93. See also Case C-163/17 Jawo EU:C:2019:218, para 87.

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in the Member State responsible for examining [the] application’.132 If there is a ‘real and proven risk of a significant and permanent deterioration … of [the applicant’s] health’, the transfer must be considered incompatible with Article 4 CFR.133 The applicant, however, bears the initial burden of providing ‘objective evidence’ demonstrating ‘the particular seriousness of his state of health and the significant and irreversible consequences to which his transfer might lead’.134 The competent authorities cannot then ‘ignore that evidence’; on the contrary, they must assess it and ‘eliminate any serious doubts concerning the impact of the transfer’.135 But this alone does not prevent the transfer. If the transferring Member State, in cooperation with the Member State responsible, can adopt sufficient precautions and ‘ensure that the asylum seeker concerned receives health care during and after the transfer’, then the removal can take place.136 Even when precautions are insufficient, the transfer is not completely ruled out, but merely ‘suspended’ for as long as ‘[the applicant’s] state of health renders him unfit for such a transfer’. Only if the transfer cannot take place within the six month time limit for taking back will it be halted and responsibility shifted to the transferring Member State.137 This ‘exceptionalisation’ of fundamental rights protections – that is, treating them as exceptions to mutual trust rather than as its baseline and guiding principle 138 – was corroborated in Jawo139 – and it tallies with the general approach to mutual trust embraced in Opinion 2/13. The judgment in that case reiterated the importance of Article 4 CFR as an absolute provision, stating that the CEAS and the principle of mutual trust itself ‘depend on the guarantee that the application of that system will not result, at any stage and in any form, in a serious risk of infringements of Article 4 of the Charter’.140 However, it concluded that only very grave violations would count, the threshold of inhuman or degrading treatment being reached only in extreme circumstances, which excludes ‘situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned, where they do not entail extreme material poverty’.141 This therefore sidelines not only other fundamental rights in the Charter but also those specifically harmonised at EU level in the CEAS instruments. For Dublin transferees, the ‘standard of protection of fundamental rights

132 133

134 138 141

CK (n 129) para 73. ibid para 74 (emphasis added). This demand for a ‘proven risk’ arguably raises the bar above what Article 3 ECHR normally requires, destabilising the equivalent ‘meaning and scope’ Article 4 CFR and Article 3 ECHR are required to have according to Article 52(3) CFR. 135 136 137 ibid para 75. ibid para 76. ibid paras 77–80. ibid para 89. 139 140 cf TEU arts 2, 6; CFR art 51. Jawo (n 131). ibid para 89 (emphasis added). ibid para 93 (emphasis added). This seems to conflate torture, inhuman treatment and degrading treatment, recognising as relevant only the upper tier of ill-treatment and ignoring that Article 4 CFR also protects against the other two lesser forms of abuse.

Mutual (Dis-)Trust in EU Migration and Asylum Law

guaranteed by EU law’142 consequently becomes reduced to (a very restrictive reading of) Article 4 CFR alone. Mutual trust as interpreted within the Dublin scheme thus amounts to a divestiture of the rights enshrined in the asylum acquis, the Refugee Convention, and the ECHR – which, paradoxically, are supposed to be the very instruments justifying the presumption of compliance in the first place.143 In this framework, (formal) mutual trust not only fails to expand the protection of rights across Member States, affirming their EU-wide reach, but also substantiates their (material) reduction to the bare minimum, disregarding harmonised standards, whose violation is considered of lesser importance than the integrity of the Schengen regime.

4.4 The ‘Exceptionalisation’ of Fundamental Rights Overall, what this chapter demonstrates is a mismatch between formally proclaimed mutual trust and real-world distrust in the EU migration and asylum policy realm. It has shown that horizontal trust between Member States manifests above all in restrictive measures that agglutinate national ‘prohibitions and restrictions’,144 raising domestic security-based concerns to the transnational sphere, where they combine and accumulate to curtail the rights of TCNs. Thereupon, forcible transfers, expulsion orders, entry bans and especially SIS alerts are accorded (implicit) ‘collectivised’ recognition in an almost automatic fashion, without any possibility for the enforcing Member State to check and contest the validity of the measure concerned – rather, it is expected to rely on both the issuing country’s and its own security-based preoccupations to exclude and expel the TCN in question. By contrast, vertical trust, towards the TCNs affected by such measures, is virtually non-existent – their presence being seen as a potential threat to all countries implicated and the EU as a whole and, therefore, securitised to preserve the Single Market and Schengen cooperation. The mobility of non-EU citizens in this context is, consequently, regarded as a reward for law-abidance and societal integration, rather than as a legal entitlement based on fundamental rights. What sets the mechanism of mutual recognition of restrictive immigration and asylum decisions apart from similar schemes within the AFSJ, however, is the explicit provision that has been made therein for ex post control of trust, which is transferred from the horizontal to the vertical plane to ensure at least minimum compliance with fundamental guarantees via specific remedies that may make good any excess (unwarranted) confidence between the Member States. Yet, although there are no specific limitations on the spectrum of rights that may be

142

ibid.

143

ibid para 82.

144

Schengen Agreement, art 17.

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invoked to resist coercion in relation to restrictive immigration decisions, within the Dublin regime, according to the CJEU’s interpretation, it is only the most egregious violations that can halt a transfer – trust otherwise being irrefutable. The final effect is an ‘exceptionalised’ and impoverished EU standard of fundamental rights protection of Dublin transferees, which is virtually reduced to (a minimalistic version of) Article 4 CFR only. Whether this was the effect intended by the joint adherence by all Member States to ‘a set of common values on which the EU is founded’ and that the Charter of Fundamental Rights elaborates and codifies is contestable.145 The reduction of fundamental rights protection that this brings about in practice negates the integrity and real-world effectiveness of primary law – which binds not only the Member States but also the CJEU – depriving asylum claimants of their EU fundamental rights. As a related consequence, behind the abstract presumption of equivalence that disregards the importance of (what are discarded as) ‘minor infringements’ of asylum obligations,146 the Dublin regime – as construed by the CJEU – openly tolerates variations in the level of protection offered by Member States on the ground. Therefore, the CJEU’s interpretation, ‘inasmuch as it would allow a Member State to [de facto] disapply EU legal rules’, erodes the supremacy and uniform application of EU law,147 thereby challenging the most ‘essential characteristics’ of the ‘constitutional structure of the EU’.148 By contrast, as the Court itself stated in Melloni, ‘the principle of primacy of EU law … [requires that] rules of national law [as well as the way in which they are applied in practice] … cannot be allowed to undermine the effectiveness of EU law on the territory of [any Member] State’.149 ‘[N]ational authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter … [is] not thereby compromised.’150 Moreover, the level of protection provided for by the Charter is not just the protection against torture enshrined in Article 4 CFR. The minimum standard of protection under EU asylum (including Dublin) law is that reflected in the asylum directives and based on (all applicable) Charter rights, the ECHR and the Refugee Convention,151 which CEAS instruments are supposed to harmonise. Descending below that harmonised standard within the Dublin regime to accelerate forcible transfers amounts to a plain violation of the ‘consensus reached by all the Member States regarding the scope to be given under EU law to the … rights [of asylum applicants]’.152 So, in the face of sub-standard national

145 147 149 151

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146 Jawo (n 131) para 80. NS (n 5) para 85. 148 Case C-399/11 Melloni, EU:C:2013:107 para 58. Opinion 2/13 (n 3) paras 165–67. 150 Melloni (n 147) para 59. ibid para 60. On the ‘aggregate standards’ approach to interpreting EU rights, see Moreno-Lax, Accessing Asylum (n 44) ch 7. Melloni (n 147) para 62.

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protection contravening the provisions of the Reception Conditions Directive and the Qualification Directive, abstract trust must be rejected and replaced with a thorough assessment of practical realities, taking heed of (existing) legal obligations deriving from primary law. The objectivation of the principle of mutual confidence cannot be instrumentalised in such a way as to sustain and legitimise the dispossession of EU fundamental rights.

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5

The Right to Liberty in the Field of Migration, Asylum and Borders JUSTINE N STEFANELLI AND ELSPETH GUILD

5.1

Introduction

The right to liberty is guaranteed in many domestic, regional and international legal instruments. In member states of the Council of Europe, Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provides everyone with the ‘right to liberty and security of person’ and limits the circumstances under which freedom may be curtailed by domestic authorities. One such circumstance is a state’s right to detain non-citizens to prevent unauthorised entry, or with a view to deportation. The EU Charter of Fundamental Rights (the Charter) similarly guarantees the right to liberty and security in Article 6. In addition, Article 9 of the International Covenant on Civil and Political Rights safeguards the right to liberty and security. Though the right to liberty is not unqualified in national, European and international law, the conditions under which a person may be lawfully deprived of liberty is lawful are strictly regulated. The EU shares competence over immigration and asylum with the Member States. It has adopted a number of legal instruments in this field, some of which affect the right to liberty by permitting the deprivation of liberty in certain situations. For example, the detention of third-country nationals is allowed as a last resort in removal proceedings under the Return Directive.1 The Asylum Procedures Directive,2 the Reception Conditions Directive3 and the Dublin III 1

2

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Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 (Return Directive). Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60 (APD). Prior to the entry into force of the recast APD, the governing framework was Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96 (RCD). Prior to this recast version, the governing framework was Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, which contemplated detention.

Migration, Asylum and Borders: The Right to Liberty

Regulation4 permit detention at certain points during a third-country national’s application for asylum or international protection. The right to liberty under the Charter has particular relevance to the area of immigration and asylum. It is in this context that the Court of Justice of the EU (CJEU) has attempted to preserve and protect the right to liberty within the limits set by the Charter while simultaneously providing a robust system for immigration, asylum and borders in the EU. The difficulty of this task is reflected in the Court’s case law on immigration detention, which is the subject of this chapter. Following this introduction, Section 5.2 will set out the content of the right to liberty by reference to its counterpart in the ECHR. Section 5.3 considers the role of liberty in the context of the detention of irregular migrants subject to return proceedings in the Member States. Section 5.4 then moves on to examine how the right to liberty applies to detention in the context of claiming international protection or asylum. Section 5.5 concludes by demonstrating how, in some cases and when compared to the ECHR, the Charter offers enhanced safeguards to protect the right to liberty.

5.2 The Right to Liberty in the Charter of Fundamental Rights Article 6 of the Charter is entitled ‘Right to liberty and security’ and provides that ‘[e]veryone has the right to liberty and security of person'.5 As discussed elsewhere in this book, the Charter applies to the Member States when they are implementing EU law.6 Given that many legislative instruments in the field of immigration and asylum provide a legal basis for detaining non-citizens as they go through relevant administrative processes, the Charter right to liberty in Article 6 necessarily comes into play in such situations. This means that Article 6 applies to national action taken under the legislation discussed in this chapter. Therefore, any deprivation of liberty permitted within the context of immigration and asylum must

4

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Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ 180/1 (Dublin III). Article 28(4) requires detention to conform to the RCD. Prior to this recast version, the governing framework was Dublin II (Regulation 343/2003/EC), and before that, the Dublin Convention, signed in Dublin on 15 June 1990. A proposal for a Dublin IV regulation was tabled by the European Commission in May 2016. Article 29 of the proposal, COM (2016) 270 final, provided for a detention period of seven weeks. D Wilsher, ‘Article 6’ in Steve Peers and others (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014). See Chapter 1.

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be carried out with due regard to Article 6 of the Charter. Any restrictions on the rights guaranteed in the Charter, including the right to liberty, must be provided for by law, must be necessary and proportionate and must ‘genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’7 The rights in Article 6 are to be given the same scope and meaning as those guaranteed by Article 5 ECHR.8 This means that when national courts, or indeed the CJEU, examine the validity of a national measure under EU law, they must take account of the ECHR and ECtHR case law when referring to the Charter.9 Article 5(1)(f) ECHR, in particular, applies to the deprivation of liberty in the context of immigration and asylum. It states: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.10

Article 5 ECHR distinguishes between criminal and immigration/administrative law situations. Thus, Article 5(3) ECHR provides a number of additional protections for all individuals subject to criminal detention, including the right to have their detention automatically reviewed by a judge and the right to a trial within a reasonable time or to be released pending trial. On the face of it, Article 6 of the Charter does not make this distinction. Article 52(3) of the Charter also makes clear that, while Charter rights must have the same meaning and scope as their ECHR counterparts, the EU is permitted to provide a greater level of protection than that afforded by the ECHR.

7

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10

Article 52. See also Steve Peers and Sacha Prechal, ‘Article 52’ in Steve Peers and others (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014). See Chapter 1. Case C-601/15 PPU JN EU:C:2016:85, Opinion of AG Sharpston, para 58. In her opinion, Sharpston suggests that the right to liberty is an autonomous standard in EU law. Though the CJEU has not explicitly agreed, it is clear from the case law that the substantive right to liberty under EU law differs from that under the ECHR. This will be demonstrated in this chapter. There is a rich body of case law from the ECtHR on the detention of foreigners, starting in 1996 with Amuur v France App no 19776/92 (25 June 1996) and developing rapidly thereafter. Three 2017 judgments, in particular, clarify a number of complex issues. See SK v Russia App no 52722/15 (14 February 2017); Ilias and Ahmed v Hungary App no 47287/15 (14 March 2017); ZA and Others v Russia Apps nos 61411/15, 61420/15, 61427/15 and 3028/16 (28 March 2017). Article 5(1)(b), which permits detention in the context of ‘the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law’, is increasingly relevant, too, where national law makes irregular border crossing and other immigration-related acts criminal offences.

Migration, Asylum and Borders: The Right to Liberty

Importantly, however, the Explanations to the Charter indicate that while the coherency of the Charter and the ECHR is important, consistency may be sacrificed to avoid ‘adversely affecting the autonomy of Union law and … that of the [CJEU]’.11 As the following sections will illustrate, the CJEU has thus had to strike a careful balance between consistency with the ECHR and respect for its own case law and legislation concerning immigration detention and the right to liberty and its accompanying guarantees.

5.3 The Right to Liberty in the Context of Return Proceedings The Return Directive was adopted with a view to ensuring the integrity of the lawful admissions policy at EU level.12 The directive makes explicit that it ‘respects the fundamental rights and observes the principles recognised in particular by the [Charter]’.13 The aim of the directive is to establish ‘an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity.’14 With some exceptions,15 it applies to third-country nationals staying illegally on the territory of a Member State. Once a decision has been made that a third-country national is present without permission, the directive obliges participating Member States to issue a return decision and begin return proceedings.16 The directive permits Member States to detain individuals subject to its provisions under strictly defined conditions.17 At the outset, the directive makes clear that detention is a last resort. Member States are obliged to determine whether ‘other sufficient but less coercive measures can be applied effectively in a specific case’.18 This means that detention decisions must be made on a case-by-case basis, according to the particular situation of the individual in question. This is in line with the ECHR, which requires the detention orders to be individualised.19 However, the directive goes beyond Article 5(1)(f) ECHR by explicitly setting forth standards which the decision to detain must meet. It is important to note here that the EU is not just a rule-taker when it comes to its relationship with the ECHR. There are several examples of the opposite, that is, of the ECtHR referring to CJEU

11 12

13 17 19

Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 33. Commission, ‘Green Paper on a Community return policy on illegal residents’ COM (2002) 175 final, 6–7. 14 15 16 Return Directive (n 1) recital (24). ibid recital (2). ibid art 2(2). ibid art 6. 18 ibid ch IV. ibid art 15(1). See eg Kanagaratnam v Belgium App no 15297/09 (ECtHR, 13 December 2011) para 80.

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case law, especially in relation to the Return Directive.20 Indeed, ‘the relevance of EU law standards in the assessment of ECHR obligations has been consistently stressed by the ECtHR.’21 This is significant because it demonstrates that EU law has a role to play in shaping ECHR standards and reinforces the notion that the CJEU and the ECtHR have a symbiotic relationship. The directive provides a short and exhaustive list of grounds for detention: where there is a risk of absconding, where the third-country national impedes the return or removal process and where alternatives cannot be effectively applied.22 Thus, unlike the ECHR, the Return Directive imposes a necessity requirement before detention can be used as a coercive measure. Cases on the Return Directive can be split into two categories. In the first category are cases dealing specifically with deprivations of liberty under the directive’s detention provisions. The cases in the second category concern the extent to which the Member States can criminalise unlawful presence by, for example, imposing a prison sentence or home detention prior to initiating return. Though the latter category does not directly concern the use of immigration detention under the directive, it does affect the right to liberty under EU law and demonstrates the CJEU’s unique approach to the protection of this right.

5.3.1

Deprivations of Liberty under the Return Directive

The first case on the Return Directive to come before the CJEU was Kadzoev.23 The Administrative Court in Sofia (Administrativen sad Sofia-grad) asked the Court for its interpretation of a number of provisions in the directive, including Article 15(1), which imposes a due diligence requirement on the authorities and states that detention can be maintained only ‘as long as removal arrangements are in progress and executed with due diligence.’ In response, the CJEU specified that, in addition to the diligent pursuit of removal by national authorities, it must be apparent to them that a ‘real prospect exists that the removal can be carried out successfully’ in light of the length of detention to date.24 The diligence of the state’s pursuit of removal or deportation is an issue that has often been addressed in the ECtHR’s Article 5 case law. In Mikolenko v Estonia, for example, the Court found that the state had failed to act with due diligence in

20

21

22 24

Khalifa and Others v Italy App no 16483/12 (ECtHR, 15 December 2016); Suso Musa v Malta App no 42337/12 (ECtHR, 9 December 2013); Amie and Ors v Bulgaria App no 58149/08 (ECtHR, 12 February 2013) para 72, Auad v Bulgaria App no 46390/10 (ECtHR, 11 October 2011) pt III; Raza v Bulgaria App no 31465/08 (ECtHR, 11 February 2010). Asylum Information Database, ‘The Legality of Detention of Asylum Seekers under the Dublin III Regulation’, Legal Briefing 1 (June 2015) 6 (and fn 42). 23 Return Directive art 15(1). Case C-357/09 PPU Kadzoev EU:C:2009:741. ibid para 65.

Migration, Asylum and Borders: The Right to Liberty

seeking deportation, because there had been a period of inactivity in terms of state efforts from August 2004 to March 2006.25 Although in Kadzoev the CJEU did not explicitly refer to the ECHR or the Charter, the impact of its decision in that case on the right to liberty in the EU legal order is clear: Member States cannot deprive individuals of their liberty based on the Return Directive unless return is being actively pursued and is likely to occur. This is in line with ECtHR case law. In the cases of Bero and Bouzalmate26 and Pham,27 the Court was asked to rule on the requirement in Article 16 that detention under the directive must take place in specialised detention facilities. In those cases, Germany was detaining people in prisons because the relevant Länder did not have specialised immigration detention facilities. In insisting that specialised facilities are necessary under the directive, the Court emphasised that the aim of the requirement is to ensure full respect for the fundamental rights and dignity of third-country nationals.28 Moreover, the Court held that national legislation offering detainees the possibility to waive their entitlement to specialised facilities was in conflict with the mandatory language of Article 16.29 Following the judgment, the detention of non-citizens under administrative law in Germany decreased sharply and remains low. As in Kadzoev, the CJEU did not refer explicitly to the Charter or the ECHR in its judgment, though it did reiterate that fundamental rights were applicable to the case. The absence of any reference to the ECHR was coherent because the ECtHR has yet to rule on the issue of specialised facilities. However, there is abundant ECtHR case law on the treatment of migrants with specific needs, such as women, children and persons with disabilities, as well as on the conditions of detention generally, in which consideration is given to the Article 3 prohibition on inhumane or degrading treatment.30 Therefore, deprivations of liberty must comply with Articles 3 and 5 ECHR. The lack of ECtHR case law specifically on this subject makes it difficult to anticipate how the Court would rule if the issue came before it. The outcome might well be influenced by an important gap between the directive and the ECHR: the directive explicitly requires detention in specialised

25

26 27 30

App no 10664/05 (ECtHR, 8 October 2009) para 64. See M and Others v Bulgaria App no 41416/80 (ECtHR, 26 July 2011) para 69; SK v Russia App no 52722/15 (ECtHR, 14 February 2017) para 115; Auad v Bulgaria App no 46390/10 (ECtHR, 11 October 2011) para 132; see also Suso Musa v Malta App no 42337/12 (ECtHR, 9 December 2013) para 104; A and Others v United Kingdom App no 3455/05 (ECtHR, 19 February 2009) para 164; Chahal v United Kingdom App no 22414/93 (ECtHR, 15 November 1996) para 113. Joined Cases C-473/13 and C-514/13 Bero and Bouzalmate EU:C:2014:295. 28 29 Case C-474/13 Pham EU:C:2014:2096. ibid para 20. ibid paras 21–22. See eg AB and Others v France App no 11593/12 (ECtHR, 12 July 2016) (detention of a minor); Dougoz v Greece App no 40907/98 (ECtHR, 6 March 2001) (overcrowding); MMS v Greece App no 30696/09 (ECtHR, 21 January 2011) (overcrowding, sanitation); Palushi v Austria App no 27900/04 (ECtHR, 22 December 2009) (access to health care).

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facilities, whereas the ECHR does not. Thus, it is conceivable that detention in prison facilities could satisfy the ECHR provided the requirements of Article 3 are respected. In this way, the directive, and therefore CJEU case law as it currently stands, exceed the requirements of the ECHR. Two cases addressed what are traditionally considered fair hearing principles. The Return Directive requires states to provide detainees with written factual and legal reasons for their detention.31 Giving reasons helps to safeguard liberty, as it provides detainees with a means of exercising their right of reply and their right to judicial review of their detention, which are affirmed by both the Return Directive and Article 5(4) ECHR. In Mahdi, the issue was whether it was necessary to provide written reasons in a decision on extending detention.32 Specifically, the referring court asked a question about the interpretation of the directive’s provisions on the right to judicial review and effective judicial protection and the corresponding rights in Articles 6 and 47 of the Charter. The Court held that an extension decision was just as much a deprivation of liberty as the initial decision, and that the Charter required any further detention beyond the maximum period to be accompanied by written reasons.33 It observed that the requirement to give written reasons was intended to ensure that detainees could effectively challenge their detention, should they choose to do so. It also allowed the reviewing court to fully assess the merits of the decision.34 If written reasons were not required in the case of a detention extension, detainees would be able to effectively challenge only the initial decision to detain, which would contravene the right to an effective remedy under EU law.35 However, the Court noted that written reasons were not required in the case of a review of detention under Article 15(3) (periodic administrative reviews) during the initial detention period.36 The Court did not explain the logic of this position. In G and R, the CJEU was asked to consider whether an infringement of the right to be heard affirmed in Article 41(2) of the Charter should result in automatic release where the detainee was not given the opportunity to be heard prior to a decision to extend his detention period. The Court began by stating that the right to be heard was ‘an integral part of the European Union legal order and enshrined in the Charter’.37 Though the directive did not explicitly state that the right had to be upheld, it was clear from CJEU case law that the right to be heard had to be respected by the Member State national authorities.38 However, as with all fundamental rights enunciated in the Charter, restrictions were permitted if they pursued a legitimate public interest objective and were not disproportionate or intolerable such that they ‘infringe upon the very substance of the rights guaranteed’.39 This therefore required the Member States to determine the nature of the 31 33 37

32 Return Directive art 15(2). Case C-146/14 PPU Mahdi EU:C:2014:1936. 34 35 36 ibid paras 44, 52. ibid para 45. ibid para 46. ibid para 47. 38 39 Case C-383/13 PPU G and R EU:C:2013:533, para 32. ibid para 32. ibid para 33.

Migration, Asylum and Borders: The Right to Liberty

breach on a case-by-case basis. Thus, the CJEU held that not every breach of the right to be heard would result in the nullity of the detention order. More specifically, it held that a breach would invalidate the detention only where the breach directly affected the outcome of the decision.40 Article 5(2) ECHR requires the state to inform detainees promptly of the reasons for their detention.41 The provision of reasons does not need to take any special form, but it must take into consideration the special circumstances of the detainee, such as whether he/she has an intellectual disability that might require the reasons to be given in a specific form.42 The adequacy of the reasons is assessed on a caseby-case basis.43 Like the CJEU decisions in G and R and Mahdi, a lack of reasons may not necessarily result in a finding that Article 5(2) has been breached.44 Such a finding depends on the circumstances of the case.45 Thus, EU law on this subject seems to be in line with ECtHR case law. Perhaps the most interesting cases relating to the Return Directive’s detention provisions are those involving questions on the maximum period of detention. Article 15(5) and (6) breaks down the time limit into two parts: an initial period of no more than six months, with the possibility of an extension of no more than twelve months in certain exceptional circumstances. Kadzoev brought to the Court’s attention a number of issues relating to the maximum duration of detention. Recalling, first, the discussion about diligence, the CJEU pointed out that ‘where the maximum duration of detention … has been reached, the question whether there is no longer a “reasonable prospect of removal” … does not arise. In such a case the person concerned must in any event be released immediately.’46 Thus, the expiry of the time limit trumps a state’s diligent pursuit of removal. The referring court in Kadzoev also asked whether time spent in detention while disputing return through judicial review proceedings should count towards the prescribed periods. The CJEU reasoned that the directive includes a maximum because its underlying aim is to prevent or limit deprivations of liberty, and because this promotes consistency among the Member States.47 In addition, the directive 40 41

42

43

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45 46

ibid para 38. For example, in Abdolkhani and Karimnia v Turkey App no 30471/08 (ECtHR, 22 September 2009), the Turkish authorities failed to communicate reasons for detention to the applicant, which was a violation of Article 5(2) ECHR. See also Murray v the United Kingdom App no 14310/88 (ECtHR, 28 October 1994). Kane v Cyprus App no 33655/06 (ECtHR, 13 September 2011); ZH v Hungary App no 28973/11 (ECtHR, 8 November 2012). Fox, Campbell and Hartley v United Kingdom Apps nos 12244/86, 12445/86 and 12383/86 (ECtHR, 30 August 1990). Stašaitis v Lithuania App no 47697/99 (ECtHR, 21 March 2002) para 67; Khudoyorov v Russia App no 6847/02 (ECtHR, 8 November 2005) para 157. Minjat v Switzerland App no 38223/97 (ECtHR, 28 October 2003) para 47. 47 Kadzoev (n 23) para 60. ibid paras 54, 56.

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requires Member States to provide third-country nationals with an effective remedy to challenge a removal decision, which would be hampered if third-country nationals were punished for undertaking such review.48 However, the grounds on which detention can be extended do not include the pursuit of legal remedies against return. Thus, the Court concluded that the directive requires time spent in pursuing such remedies to count towards the prescribed maximum length of detention, even if removal is not possible during that time because of the appeal.49 This outcome should be contrasted with the Court’s subsequent decision in Arslan, where the issue was whether the maximum period is affected by an application for asylum in the context of the Common European Asylum System (CEAS).50 Unlike judicial review of return, a genuine application for asylum by a third-country national that triggers the CEAS framework does not allow the period of detention resulting from the application of that framework to count towards the maximum length of detention laid down in the Return Directive.51 Thus, it is necessary to examine each case to determine whether the person’s application is genuine or has been made ‘solely to delay or jeopardise the enforcement of the return decision’.52 Given the concern about limiting deprivations of liberty and harmonising detention periods among Member States expressed by the Court in Kadzoev, it is strange that the Court did not also see fit to allow time spent legitimately seeking asylum to count towards the maximum period of detention.53 Though the ECHR does not provide a maximum period of detention and the ECtHR has not ruled on this point, case law makes clear that, where national law provides for a maximum period, detention cannot exceed it.54 In one case, the ECtHR held that Article 5(1) ECHR had been violated by the authorities’ failure to respect the Return Directive’s overall eighteen-month time limit, which had been implemented in national law.55 Here too, the directive’s detailed provisions exceed those of Article 5 ECHR by setting a maximum period. However, there is consistency in CJEU and ECtHR case law regarding the absolute nature of a maximum period where such exists.

5.3.2 The Effectiveness of the Return Directive Moving beyond cases that expressly implicate the Return Directive’s detention provisions to those that concern the criminalisation of immigration, one sees a wholly different approach on the part of the CJEU. In these cases, the Court

48 51 53

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49 50 ibid para 50. ibid paras 52, 57. Case C-534/11 Arslan EU:C:2013:343. 52 Kadzoev (n 23) paras 40–48. ibid para 62. Note also that the CJEU has strictly prohibited the extension of detention beyond the maximum period; see eg Kadzoev (n 23) and Mahdi (n 32). Shamsa v Poland Apps nos 45355/99 and 45357/99 (ECtHR, 27 November 2003) para 53. Louled Massoud v Malta App no 24340/08 (ECtHR, 27 July 2010).

Migration, Asylum and Borders: The Right to Liberty

routinely holds that the obligation to give effect to EU law prohibits measures criminalising illegal stays which impede the effective functioning of the Return Directive. The concept of effectiveness, or effet utile, is not new. It has been employed many times by the Court as a device to ensure the protection of EU nationals’ rights.56 More recently, the Court has used it in criminal cases to prevent national criminal measures from disproportionately impinging on free movement rights.57 Though not a new principle, its operation in the context of immigration and asylum has important implications for the way the CJEU gives effect to Article 6 of the Charter. In particular, the Court has had to strike a balance between giving effect to the aims of EU immigration and asylum legislation and safeguarding detainees’ right to liberty. The first of these cases, El Dridi, considered whether Member States could impose criminal imprisonment as a consequence of an illegal stay. The Court answered no on the grounds that imprisonment would delay the return process, which, under Article 6(1) of the Return Directive, must be initiated immediately after a third-country national is declared illegally present in a Member State.58 Otherwise, the aim of ensuring their effective return would be impaired.59 In Md Sagor, following the same logic, the CJEU permitted a national law to impose a fine or an order for immediate expulsion as a consequence of an illegal stay, because neither would prevent return proceedings from being initiated and thus the directive would be given proper effect.60 However, in a subsequent case, the

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See eg Joined Cases C-6/90 and 9/90 Francovich and Bonifaci v Italy EU:C:1991:428, para 33; Case C-6/64 Costa v ENEL EU:C:1964:66; Case C-41/74 Van Duyn v Home Office EU:C:1974:133, para 12; Case C-14/83 Von Colson and Kamann v Land Nordrhein-Westfalen EU:C:1984:153. For general academic commentary on effectiveness, see Urska Sadl, ‘The Role of Effet Utile in Preserving the Continuity and Authority of European Union Law: Evidence from the Citation Web of the Pre-Accession Case Law of the Court of Justice of the EU’ (2015) 8 European Journal of Legal Studies 18; Stefan Mayr, ‘Putting a Leash on the Court of Justice: Preconceptions in National Methodology v Effet Utile as a Meta-Rule’ (2012) 5 European Journal of Legal Studies 3. Case C-203/80 Casati EU:C:1981:261, para 27. See also Valsamis Mitsilegas, ‘The Changing Landscape of the Criminalisation of Migration in Europe’ in Maria João Guia and others (eds), Social Control and Justice: Crimmigration in the Age of Fear (Eleven International 2013) 98–100; Ester Herlin-Karnell, ‘Effectiveness and Constitutional Limits in European Criminal Law’ (2014) 5 New Journal of European Criminal Law 267; Herlin-Karnell, ‘An Exercise in Effectiveness?’ (2007) 18 European Business Law Review 1181. Case C-61/11 PPU El Dridi EU:C:2011:268. The Court has admitted two exceptions to the rule it established in El Dridi preventing imprisonment as a consequence of illegal stay: (1) imprisonment is permissible in situations where the return process has previously been applied to the individual in question but he/she did not comply (Case C-329/11 Achughbabian EU:C:2011:807); (2) imprisonment is allowed in the case of illegal re-entry by someone who was previously removed (Case C-290/14 Celaj EU:C:2015:640). Case C-430/11 Md Sagor EU:C:2012:777.

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CJEU rejected the imposition of a fine instead of a removal order, because permitting a third-country national to remain within the territory, despite having been found to be there illegally, would not give effect to the directive’s primary objective of returning such people.61 Effectiveness is not completely absent from the cases involving detention under the directive’s detention provisions either. In G and R, the Court used the effet utile principle to justify its holding that not every breach of a right to be heard would result in a finding that detention is unlawful. It held that to hold otherwise would risk depriving national authorities of their competence to assess the impact of a breach, and would ultimately undermine the effectiveness of the directive, especially where detention is necessary to ensure that removal occurs.62 Thus far, the principle of effectiveness has largely operated in such a way as to enhance and safeguard the right to liberty. However, it is not clear that this will always be the case, nor is it clear why the Court has sometimes opted to speak in the language of effectiveness instead of fundamental rights. This choice could have important ramifications. For example, it could signal to Member States that effectiveness is more important than fundamental rights, or discourage them from raising fundamental rights concerns, neither of which is desirable from the perspective of fundamental rights protection. For now, the fact that the effectiveness principle largely operates to prevent continuing detention in the context of criminal law is a positive development, reducing the overall time individuals subject to the Return Directive spend in custody.

5.4 The Right to Liberty and the Detention of Asylum Seekers In addition to detention with a view to deportation, Article 5(1)(f) ECHR permits detention to prevent unauthorised entry to a territory.63 Consequently, this part of Article 5(1)(f) has traditionally been used to justify the detention of asylum seekers and those seeking other forms of international protection.64 The CEAS permits the detention of asylum seekers both upon their arrival at the border of a Member State and during the asylum application process. Upon arrival at an external EU border, a third-country national may make an application for international protection. In such cases, CEAS legislation applies. If the third-country

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62 Case C-38/14 Zaizoune EU:C:2015:260. G and R (n 37) paras 41–42. Guy Goodwin-Gill, ‘International Law and the Detention of Refugees and Asylum Seekers’ (1986) 20 International Migration Review 193. For ease of reference, these individuals as a whole will be referred to as asylum seekers in this chapter. ‘International protection’ is defined in Article 2(i) of the APD as covering refugee and subsidiary protection status.

Migration, Asylum and Borders: The Right to Liberty

national submits an application in the state where they first arrived to the EU, the Asylum Procedures Directive (APD) and Reception Conditions Directive (RCD) will apply. The APD regulates the procedures to be followed when applying for international protection,65 while the RCD sets forth standards for the reception of those seeking international protection, including rules on the use of detention. If the third-country national does not apply for protection in the first state of entry, the Member State where the application is made may, under the Dublin III Regulation, make a take back request66 to the Member State of initial entry for that state to be responsible for examining the application. In both situations, the third-country national may be detained. This section will discuss the RCD first and the Dublin III Regulation second because the latter refers to the RCD in relation to detention guarantees and conditions.

5.4.1

Detention under the Asylum Reception Conditions Directive

Though the CEAS framework prohibits the detention of people seeking international protection purely because they are requesting protection, in certain circumstances they may be detained pending a decision on their application. The RCD includes six grounds for detention.67 It also includes a number of guarantees for detained asylum seekers, concerning, for example, as in the Return Directive, diligence, the right to be informed of the reasons for detention and the right to a judicial review of the detention.68 However, unlike the Return Directive, the RCD does not provide for a maximum period of detention. At the time of writing, there have been two judgments on detention under the RCD and an opinion of the Advocate General in a third case. The two cases in which judgments have been delivered were similar. They both considered whether specific grounds for detention under the RCD were in conflict with Article 6 of the Charter. In JN, the CJEU was asked to rule on the validity of Article 8(3)(e), which permits detention ‘when protection of national security or public order so requires’.69 In that case, Mr N had made a number of unsuccessful asylum applications in the Netherlands over a period of approximately ten years. He was also the subject of a return decision and a ten-year entry ban under the Return Directive. He then filed a fourth asylum application and was detained on the basis of Article 8(3)(e) of the RCD because the authorities felt that, although national law considers asylum applicants as being lawfully present in the Netherlands, Mr N presented

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Aside from a general prohibition on the detention of applicants for international protection based solely on the fact that they are making such an application (art 26(1)), the APD does not regulate detention beyond reference to the RCD. Thus, the RCD is the focus in this section. This is sometimes referred to in the regulation as a take charge request. 68 69 RCD art 8(3). RCD arts 9(1), 9(3)–(10). Case C-601/15 PPU JN EU:C:2016:84.

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a risk to public order or national security because of numerous criminal convictions.70 Mr N challenged his detention, arguing that it violated the second limb of Article 5(1)(f) ECHR because the decision to detain him was not taken with a view to deportation and that, as a lawfully present asylum seeker, he could not be detained while his application was pending.71 The Dutch Council of State asked the CJEU whether detention under Article 8(3)(e) in such circumstances was valid in light of Article 6 of the Charter. The CJEU began by emphasising that, despite having a strong influence on the EU legal order, the ECHR was not formally incorporated into EU law because the EU had not acceded to it. Consequently, the validity of the RCD could be assessed only in the light of the Charter.72 The Court further explained that, while Article 52 of the Charter was aimed at ensuring consistency between the two instruments, such consistency should not be at the expense of the autonomy of EU law and the CJEU.73 Accordingly, the Court measured Article 8(3)(e) against its own case law on fundamental rights. As a first step, the Court acknowledged that Article 8(3)(e) placed a limitation on Article 6 of the Charter. As such, it had to comply with the safeguards in Article 52(1) of the Charter.74 In finding that it did, the Court reviewed its own case law on concepts such as necessity, proportionality, public order and national security.75 The Court finally reviewed relevant ECHR case law that supported its finding. In particular, it cited Nabil and Others v Hungary in support of the proposition that detention pending an asylum decision does not necessarily mean that detention is not ordered with a view to deportation, because, if the asylum application were rejected, return proceedings would recommence.76 Therefore, the CJEU reached its decision primarily by reference to its own legal order, citing the ECHR only where necessary to address ECHR aspects of the applicant’s claim. This may be an indication that the CJEU is beginning to develop its own, autonomous interpretation of Article 6 of the Charter. In K, the applicant made an application for asylum and was detained the same day on the basis of Article 8(3)(a) and (b) of the RCD, which permit the detention of asylum seekers for the purposes of verifying or determining their identity or nationality, or as a safeguard against the risk of the applicant absconding pending the outcome of the application.77 In this case, the applicant had been picked up by the authorities at Schiphol Airport in Amsterdam while attempting to board a flight to Edinburgh with what was allegedly a false passport.78 The charges against him were dismissed and no return decision was entered against him, but

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71 72 ibid paras 21–35 (disposition of the facts). ibid para 34. ibid paras 45–46. 74 75 76 ibid para 47. See Section 5.2 above. ibid paras 50–74. ibid paras 78–80. 78 Case C-18/16 K EU:C:2017:680. ibid paras 17–29 (disposition of the facts).

Migration, Asylum and Borders: The Right to Liberty

the authorities apparently felt there was a sufficient risk to justify applying subparagraphs (a) and (b). However, the facts meant that K was distinguishable from JN because no return proceedings were in progress at the time Mr K filed his asylum application. In assessing whether Article 8(3)(a) and (b) violated Article 6 of the Charter, the Court again referred to the tension in Article 52(1) of the Charter between coherence with the ECHR and maintenance of the EU legal order.79 As in JN, it relied primarily on its own jurisprudence to conclude that neither provision was in conflict with Article 6 or Article 52(1) of the Charter.80 But it also referred to the ECtHR judgment in Saadi v UK, which held that the first limb of Article 5(1)(f) ECHR permitted detention to prevent unauthorised entry, even in the case of asylum seekers, as long as the detention was lawful and implemented in a nonarbitrary manner.81 The ECtHR later distinguished Suso Musa v Malta from Saadi by suggesting that the legality of detention under Article 5(1)(f) ECHR may not be as easily established in cases where a state has conferred a right to remain pending a decision on asylum.82 The APD requires Member States to allow applicants to remain in the Member State pending the examination of an application for international protection.83 Thus, in light of the discussion in Suso Musa, detention of applicants under the EU RCD framework may be problematic when measured against ECHR standards. This could have the knock-on effect of posing a problem for the Charter if the two instruments are indeed supposed to be consistent. Given that the Strasbourg Court has not yet had occasion to rule on detention under the RCD in these circumstances, we cannot say whether the CJEU would choose to diverge from the ECHR on this issue and assert its autonomy or whether it would adapt its case law to be in line with that of the ECtHR. The case of DH, though since withdrawn, was the subject of an opinion by Advocate General Sharpston.84 Her opinion is interesting and important because of its discussion and treatment of the right to liberty, in particular. The issue in DH was whether a state must allow judicial review (at first instance or on appeal) of detention to continue even after the detainee’s release. The provision of the RCD at issue was Article 9, which provides for a number of guarantees for detained individuals, including, in subparagraphs (3) and (5), the right to judicial review of a detention order. In recommending that the Court interpret the right to liberty and the right to an effective remedy under Article 47 of the Charter as requiring such proceedings to be carried on until their completion at both stages of the process, Advocate General Sharpston not only pressed for consistency between Article 6 79 82 84

80 81 ibid para 32. ibid paras 31–49. App no 13229/03 (ECtHR, 29 January 2008). 83 App no 42337/12 (ECtHR, 23 July 2013). RCD art 9. Case C-704/17 DH EU:C:2019:85, Opinion of AG Sharpston.

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of the Charter and Article 5 ECHR, but also made important statements concerning the fundamental nature of the right to liberty and the impact of detention on that right. For example, she stated that, though the individual may be physically released from detention, ‘neither the consequences nor the effects of an unlawful detention disappear by magic when the doors of the detention centre swing open and the detainee walks free’.85 She also stressed that Article 9(3) RCD is concerned not with the physical but with the legal fact of detention; that is, the existence of a detention order.86 Moreover, Advocate General Sharpston made important points concerning, for example, the value of ‘put[ting] the legal record straight’, official recognition of a wrong on the part of the state, and providing a legal basis for claiming compensation for unlawful detention – a possibility that is explicitly foreseen in Article 5(5) ECHR.87 She also expressed great concern over the risk that, if release automatically cancelled judicial review proceedings, national authorities could evade judicial review completely by releasing individuals who request a review of their detention.88 Neither the RCD nor Article 5(5) ECHR goes into any detail on how judicial review of detention should operate. However, Advocate General Sharpston was careful to outline the protections afforded by Article 5 ECHR as a means of understanding the content of Articles 6 and 47 of the Charter.89 In so doing, her opinion attempts to pave the way for consistency between the two instruments in the future.

5.4.2

Detention under the Dublin III Regulation

The Dublin III Regulation applies in situations where a Member State has received an application for international protection from a third-country national who entered the EU through another Member State. It sets out the criteria and mechanisms for determining which Member State is responsible for handling the application for international protection. Article 28(2) allows applicants to be detained in order to secure the transfer process only where there is a significant risk of absconding. At the time of writing, there have been two CJEU judgments on the Dublin III Regulation’s detention provisions. This section will focus on the first case of Al Chodor,90 in which the Court was asked to assess whether the reference in Article

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86 87 88 ibid para 38. ibid paras 42–43. ibid para 38. ibid paras 49–50. ibid paras 36–39. Case C-528/15 Al Chodor EU:C:2017:213. See also Tommaso Poli, ‘Immigration Detention and the Rule of Law: The ECJ’s First Ruling on Detaining Asylum Seekers in the Dublin System’ (EU Law Analysis, 5 May 2017), https://eulawanalysis.blogspot.com/2017/05/immigration-detentionand-rule-of-law.html. The other case, C-60/16 Khir Amayry EU:C:2017:675, concerned the deadlines for carrying out transfers in Article 28 and their impact on the calculation of detention time limits in the context of transfers.

Migration, Asylum and Borders: The Right to Liberty

2(n) to ‘objective criteria defined by law’, on the basis of which the assessment of a significant risk of absconding pursuant to Article 28(2) must be made, meant that the criteria had to be set forth in legislation. If it did, the referring court questioned whether the absence of such legislation deprived the state of its power to detain under Article 28(3). The facts of Al Chodor were as follows. Mr Al Chodor and his two minor children were picked up without documentation by the Czech authorities. It was discovered that they had previously made an application for asylum in Hungary, so a process of transfer to Hungary under Article 18(1)(b) of Dublin III was initiated. The Czech authorities considered that the Al Chodors presented a serious risk of absconding and placed them in immigration detention. They were subsequently released from custody after successfully challenging their detention on the grounds that the national law at issue did not set out objective criteria for assessing whether there was a risk of absconding. The state appealed to the Supreme Administrative Court, arguing that Article 28(2) of Dublin III could not be rendered inapplicable merely because there were no objective criteria in the legislation. That Czech court referred the matter to the CJEU. The Court began with a description of the legal context in which it referred to the right to liberty in Article 6 of the Charter and its correspondence with Article 5 ECHR.91 After determining that Article 2(n) did indeed require the criteria to be included in national law, the CJEU considered what type of national law would suffice.92 For the Court, the inclusion in Dublin III of provisions on detention that had not been in previous versions of the regulation was a clear indication of the legislators’ intention to provide a greater level of protection for detained applicants.93 Together, Articles 2(n) and 28(2) represented a limitation on the right to liberty in Article 6 of the Charter, and any such limitation had to ‘respect the essence of that right and be subject to the principle of proportionality.’94 The Court then turned to Article 5 ECHR as a source of assistance both when interpreting Article 6 of the Charter in light of the ECHR and ECtHR case law and when assessing the national law at issue. It focussed, in particular, on the issue of legality and the requirement that any deprivations of liberty must be lawful. This meant that there must be a legal basis for the deprivation, but also that the law providing the legal basis for detention must be of sufficient quality – that is, ‘sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness’.95 The national law at issue therefore had to be assessed

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92 93 94 ibid paras 3–5. ibid paras 24–28. ibid para 35. ibid para 37. ibid para 38, citing Del Río Prada v Spain, App no 42750/09 (ECtHR, 21 October 2009) para 125.

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against those standards. The Court discussed the importance of ensuring that any exercise of discretion when determining whether detention was necessary under Articles 28(2) and 2(n) was subject to ‘predetermined limits’.96 This meant that the criteria for establishing ‘significant risk’ must be set forth clearly in a binding legislative act of general application.97 Therefore, the practice of the Czech authorities of making reference to case law and administrative practice did not satisfy the requirement of legality in Article 5 ECHR (and thereby also Article 6 of the Charter). Without such a provision in law, the detention power in Article 28(2) could not be validly exercised.98 The decision in Al Chodor corresponds to the position taken by the ECtHR in cases on the quality of law.99 In those cases, the Strasbourg Court required the law governing detention to be sufficiently accessible and precise to avoid arbitrariness. It also specifically held that a senior prosecutor’s statement that detention should not normally exceed one month did not satisfy the quality of law requirement.100 The Al Chodor ruling therefore establishes the coherence of EU law and the ECHR on this issue. A case concerning detention and the Dublin system came before the ECtHR prior to the entry into force of the Dublin III Regulation. MSS v Belgium and Greece concerned the operation of the Dublin system in the face of allegations of substantial human rights violations.101 The ECtHR found that the conditions of detention in Greece (the responsible state) amounted to a breach of the Article 3 ECHR prohibition on torture and inhumane or degrading treatment, and that Belgium had violated the ECHR by returning the claimant to Greece given the conditions there.102 The decision resulted in the suspension of all removals to Greece,103 and it led to the inclusion in the Dublin III Regulation of the second subparagraph of Article 3(2) permitting Member States to evaluate whether there are systemic flaws in the responsible state’s asylum processes, including the reception conditions, and to consider whether another Member State might be more suitable.

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97 98 ibid para 42. ibid paras 42–44. ibid para 47. See eg Amuur v France App no 19776/92 (ECtHR, 25 June 1996) para 50; Mathloom v Greece App no 48883/07 (ECtHR, 24 April 2012) paras 63, 68. Dougoz v Greece App no 40907/98 (ECtHR, 6 March 2001) para 57. App no 30696/90 (ECtHR, 21 January 2011). At the time, the Dublin II Regulation 343/2003/EC was in force. The ECtHR also found a violation of the Article 13 right to an effective remedy because of the applicable asylum processes in Greece. In February 2017, the Commission suggested that returns to Greece under Dublin III could be resumed, but national courts seem more reticent.

Migration, Asylum and Borders: The Right to Liberty

5.5 Conclusion Through case illustrations, this chapter has explored the content of the Charter right to liberty in relation to immigration, asylum and borders. The Charter’s requirement that its provisions be construed in line with the ECHR has given the CJEU a baseline standard of liberty with which to conduct its review. However, as noted in the introduction to this chapter, the Charter sometimes offers a higher level of substantive protection of the right to liberty than the ECHR.104 For example, Article 6 of the Charter does not distinguish between civil and criminal proceedings in the way that Article 5 ECHR does. In addition, as demonstrated by Kadzoev, Article 6 has been understood as making deprivations of liberty subject to necessity, meaning that states are required to consider alternatives before resorting to detention. No such requirement exists under the ECHR. As illustrated by Bero and Bouzalmate and in Pham, CJEU case law has established that Article 6 requires the detention of migrants to take place in specialised facilities, whereas there is no such requirement under the ECHR. There are also signs that the CJEU might be minded to strike out on its own regarding the operation of Article 6. This at least could be inferred from JN and K, where the Court discussed the important concern of EU legislative and judicial autonomy, though in the end both cases fell in line with related ECHR case law. In many cases, it is obvious that the CJEU wishes to keep its case law in line with that of the ECtHR. This is illustrated by the CJEU’s discussion of standards of diligence in relation to removals in Kadzoev and of the right to be informed of the reasons for detention in G and R and Mahdi. Where the Charter protections seem to exceed those of the ECHR, it should be borne in mind that there is an important difference between the EU and ECHR legal orders. Though both constitutional instruments are drafted in broad language, the EU Charter benefits from a number of secondary instruments in the field of immigration and asylum, whose detailed provisions assist the CJEU in fleshing out the content of Article 6 in a way that is not available under the ECHR. Thus, for example, the CJEU is able to point to the maximum period of detention in the Return Directive and hold repeatedly that where an individual is detained in the context of return procedures, detention cannot exceed the absolute maximum provided in the directive. Though the ECtHR is unable to do likewise, it has on numerous occasions held that where a maximum exists in law, it must be respected. In that way, the EU and ECHR are aligned. It could indeed be submitted

104

This has been confirmed in Leandro Mancano, The European Union and Deprivation of Liberty (Hart 2019); see also Johan Callewaert, ‘Do We Still Need Article 6(2) TEU? Considerations on the Absence of EU Accession to the ECHR and its Consequences’ (2018) 55 CMLRev 1685.

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that provisions of the secondary legislation such as those discussed above were indeed at least in part inspired by the ECHR. Though this may well be true, it remains the case that the Charter right to liberty may in the end require additional safeguards in practice. To conclude, we sound a note of caution. Though the CJEU judgments refer to the Charter when setting out the legislative context, their legal reasoning is often not sufficiently explicit about the Charter or the importance of the right to liberty. This is most vividly seen in judgments relying on the principle of effectiveness of EU law, typically in the context of the Return Directive. The Court can and should rely on the Charter to fully support the logic of its reasoning where the rights of detainees are involved, because the right to liberty is one of the, if not the, most fundamental rights of all. By doing so, it would reinforce the function of the Charter as an important tool of legal reasoning and encourage national courts to bolster their decisions by using fundamental rights language. In addition, given that the Charter has been interpreted as moving beyond the ECHR in some respects, perhaps there is potential for the CJEU to provide detained migrants with the protections afforded to those detained under criminal processes, so that people subject to all types of detention are treated equally by the law. The Charter certainly does not rule out this possibility.

6

Family Life and the Best Interests of the Child in the Field of Migration CIARA M SMYTH

6.1 Introduction Multilevel governance, variable geometry, ambiguous harmonisation and a complex fundamental rights regime: few areas in the AFSJ speak more directly to the themes of this book than the regulation of family life and the best interests of the child in the field of migration. The key piece of secondary legislation governing the family life of migrants is Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (Family Reunification Directive).1 This directive establishes a right to family reunification in EU Member States for settled third-country national (TCN) migrants who meet the eligibility criteria in the directive. Asylum seekers are expressly excluded from the personal scope of the directive, as a result of which they do not benefit from any right to family reunification in EU law. Nonetheless, certain criteria of the Dublin Regulation allocate responsibility for an asylum applicant to the Member State where a family member is present, which constitutes a short-term form of family reunification.2 The Court of Justice of the European Union (CJEU) has held that the criteria concerning unaccompanied minors must be interpreted and applied in the light of the principle of the best interests of the child.3 However, the data on Dublin transfers shows that Member States tend not to follow the hierarchy of criteria in the regulation, prioritising the so-called fault criteria over the family criteria.4 Other instruments of the EU

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This chapter is adapted from an article previously published in the Journal of Immigration, Asylum and Nationality Law. Permission to reproduce its content in this revised form has been kindly granted by Bloomsbury Academic. [2003] OJ L251/12. Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31, arts 8–11. Case C-648/11 MA, BT and DA EU:C:2013:367. Eurostat statistics for 2018 reveal that of the 50,536 take charge requests under the Dublin Regulation, just 4,923 (or 9.7 per cent) related to the family criteria; a further 1,169 (or 2.3 per cent) related to the dependent persons and humanitarian criteria; accordingly, 44,444 (or 88 per cent) related to the so-called fault criteria, https://ec.europa.eu/eurostat/web/asylum-andmanaged-migration/data/database, accessed 18 July 2019.

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Common European Asylum System protect – and sometimes undermine – the other facet of family life, namely, family unity. For example, various provisions of the recast Reception Conditions Directive are devoted to keeping the family together.5 However, the family is limited to the family as it existed in the country of origin, thereby excluding children born after arrival or in transit. Moreover, the principle of family unity can be derogated from when the family is detained. This is contrary to recent normative developments at the international level, which suggest that detention of children even with their parents – and a fortiori without – is incompatible with the right to family life and the principle of the best interests of the child.6 Notwithstanding these interesting developments in the field of asylum, for reasons of space the focus of this chapter is on the right to family life and the best interests of the child in the field of migration, and specifically on the Family Reunification Directive.7 Section 6.2 outlines the main lines of scholarly analysis and state practice relating to the directive; Section 6.3 sets out the international human rights benchmark relating to family life and the best interests of the child; Section 6.4 critically analyses the burgeoning case law of the CJEU on the directive from a fundamental rights perspective; and Section 6.5 concludes with some observations about the role and limits of fundamental rights in the field of migration. A working knowledge of the text of the directive on the part of the reader is assumed.

6.2

Main Lines of Scholarly Analysis and State Practice

The early scholarship on the Family Reunification Directive focused on the dynamics at play during the negotiations and in the years following implementation. The directive was negotiated and adopted under the constraints of the ‘old’ TEC competence in the areas of immigration and asylum, namely, a right of veto in the Council and mere consultation with the European Parliament. This resulted in

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Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection [2013] OJ L180/96. See C Smyth, ‘Towards a Complete Prohibition on the Immigration Detention of Children’ (2019) 19 Human Rights Law Review 1. The Return Directive (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98) also has implications for the right to family life and the best interests of the child. See Case C-82/16 K.A and Others EU:C:2018:308. For commentary, see C Smyth, ‘A Turn towards Fundamental Rights or Just a Swerve? The Jurisprudence of the CJEU on Family Reunification for Static Union Citizens and Third Country National Immigrants’ (2019) 33 Journal of Immigration, Asylum and Nationality Law 283.

Migration: Family Life and Best Interests of the Child

two re-draftings by the Commission and a gradual erosion of the ‘right’ to family reunification that the directive was meant to establish, culminating in an action for annulment by the European Parliament, discussed in detail in Section 6.4.1. The political landscape, although not as polarised as it is today, also had a significant influence on the negotiations. A small number of Member States used the negotiations to shoehorn into the directive restrictive family reunification policies already or soon to be introduced at the domestic level. The scholarship has analysed these developments from a ‘vertical Europeanisation’ perspective, exploring the influence of key Member States on the directive and vice versa; and from a ‘horizontal Europeanisation’ perspective, exploring the influence of Member States on each other during the negotiations, as revealed in their subsequent policy changes.8 The overall consensus was that the directive had little impact as a harmonising measure and, indeed, that it facilitated a ‘race to the bottom’, in some Member States at least. This was largely confirmed by the Commission’s first implementation report in 2008.9 Another line of scholarship has contextualised the directive within broader EU free movement and migration law and policy. Some commentators have observed that the directive epitomises the ‘differentiated and fragmented’ approach to immigration in EU law, whereby different categories of migrants are subject to different rights regimes.10 This has ‘the ambiguous effect of enabling the expansion of rights to non-citizens while at the same time creating new lines of division and mechanisms of exclusion’.11 Thus, the directive explicitly excludes certain cohorts from its mandatory personal scope, such as asylum seekers, as previously noted, and also beneficiaries of subsidiary protection and TCN family members of EU citizens. Both of these exclusions have attracted criticism, the former because it is unprincipled, the latter because of the spectre of reverse discrimination against TCN family members of ‘static’ EU citizens, something that has been only partly mitigated by the Zambrano line of cases.12 Moreover, the literature has extensively

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12

See L Block and S Bonjour, ‘Fortress Europe or Europe of Rights? The Europeanisation of Family Migration Policies in France, Germany and the Netherlands’ (2013) 15 EJML 203; see, more generally, A Luedtke, ‘Uncovering European Union Immigration Legislation: Policy Dynamics and Outcomes’ (2009) 49(2) International Migration 1; M Schain, ‘The State Strikes Back: Immigration Policy in the European Union’ (2009) 20 European Journal of International Law 93. ‘Report from the Commission to the European Parliament and the Council on the Application of Directive 2003/86/EC on the Right to Family Reunification’ COM (2008) 610 final. P Da˛browska-Kłosin´ska, ‘The Right to Family Reunion vs Integration Conditions for ThirdCountry Nationals: The CJEU’s Approach and the Road Not Taken’ (2018) 2 EJML 251, 254. J Mourão Permoser, ‘Redefining Membership: Restrictive Rights and Categorisation in European Union Migration Policy’ (2017) 43 Journal of Ethnic and Migration Studies 2536, 2536. See A Staver, ‘Free Movement and the Fragmentation of Family Reunification Rights’ (2013) 15 EJML 69.

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compared the (‘thin’) right to family reunification of TCNs under the directive and the (‘thick’) right to family reunification of EU citizens exercising free movement rights (including in relation to TCN family members) under the Citizenship Directive.13 This appears to be contrary to the ‘fair treatment of third-country nationals residing legally in Member States’ – a requirement of Article 79 TFEU – and, indeed, contrary to the integration logic of the Family Reunification Directive itself. The stratification of rights is compounded by the fact that the directive is cross-referenced in a number of other migration directives, where certain of its provisions are used as a baseline from which to enhance the right to family reunification of categories of particularly desirable TCNs, namely, long-term residents,14 researchers,15 blue-card holders16 and intra-corporate transferees.17 A further complicating factor is that Denmark, the United Kingdom and Ireland declined to opt in to the directive and so family reunification in these Member States is not governed by EU law.18 A more recent strand of research compares how the Family Reunification Directive has been implemented in all Member States. In 2016, the first in-depth study on the implementation of the Family Reunification Directive was published,19 the findings of which have been largely confirmed by the 2019 Commission implementation report.20 These reports verify that there is a variety of national practices but challenge the straightforward notion of a ‘race to the bottom’. For example,

13

14

15

16

17

18

19

20

See S Iglesias Sanchez, ‘Fundamental Rights protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence’ (2013) 15 EJML 137. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2003] OJ L16/44. Directive 2016/801/EU of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing [2016] OJ L132/21. Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of thirdcountry nationals for the purposes of highly qualified employment [2009] OJ L155/17. Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intracorporate transfer [2015] OJ L157/1. See Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, which was replaced by Protocol (No 21) of the Lisbon Treaty on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice; and Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, which was replaced by Protocol (No 22) of the Lisbon Treaty on the position of Denmark. European Migration Network, ‘Family Reunification of Third Country Nationals in the EU plus Norway: National Practices’ (EMN Synthesis Report 2016). ‘Report from the Commission to the European Parliament and the Council on the implementation of Directive 2003/86/EC on the right to family reunification’ COM (2019) 162 final.

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the vast majority of Member States grant the same or similar family reunification rights to beneficiaries of subsidiary protection, notwithstanding their exclusion from the personal scope of the directive. Similarly, the charge of reverse discrimination against ‘static’ EU citizens seems largely baseless: while a number of Member States apply the same family reunification rules to ‘static’ EU citizens as to TCNs, the majority of Member States grant the former more favourable family reunification rights. Nonetheless, the picture is mixed and the 2016 study identifies a number of major impediments to the realisation of the right to family reunification created or enabled by the directive, including logistical difficulties in submitting an application and excessive processing times. Against this backdrop of mixed exclusionary and inclusionary practices, the question arises as to the impact of the CJEU on Member State implementation and interpretation of the directive.21 From the outset, some commentators have expressed the view that the directive’s exclusionary tendencies will be rehabilitated through the case law of the Court. Thus some have predicted that the Court will take the directive in unintended directions through the interpretative lens of the general principles (including fundamental rights) of EU law and through interpretation analogous to EU free movement law.22 The early case law of the Court gave credence to this view.23 Other commentators, however, have cautioned that any upward harmonisation by the Court will require the policy preferences of the Court to diverge significantly from those of Member States.24 Such a divergence could be risky for the Court in the current populist, anti-EU era. In more recent case law, the Court has not been consistently pro-migrant, and indeed some of its judgments have attracted criticism on fundamental rights grounds. In order to engage with that criticism, it is useful to set out the benchmark, namely, the right to family life and the best interests of the child as they exist in human rights law.

6.3 The Human Rights Benchmark The right to family life is acknowledged in Article 7 of the Charter of Fundamental Rights of the European Union (Charter).25 According to the ‘Explanations relating to the Charter of Fundamental Rights’ (Explanations),26 Article 7 corresponds

21

22 23

24

See S Lavenex, ‘Towards the Constitutionalisation of Aliens’ Rights in the European Union’ (2006) 13 Journal of European Public Policy 1284. K Groenendijk, ‘Family Reunification as a Right under Community Law’ (2006) 8 EJML 215. K Groenendijk, ‘Recent Developments in EU Law on Migration: The Legislative Patchwork and the Court’s Approach’ (2014) 16 EJML 313. 25 26 Block and Bonjour (n 8). [2000] OJ C364/1. [2007] OJ C303/17.

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to Article 8 of the European Convention on Human Rights (ECHR)27 and, per Article 52(3) of the Charter, must therefore be given the same meaning and scope, although this ‘shall not prevent Union law providing more extensive protection’. Accordingly, the voluminous Article 8 immigration case law of the European Court of Human Rights (ECtHR) is of great importance. The very first immigration, and indeed family reunification, case – Abdulaziz, Cabales and Balkandali v The United Kingdom – is noteworthy for its enduring legacy.28 Here, the ECtHR acknowledged that the right to family life could in principle impose a positive obligation on the state to admit family members. However, family reunification cases are ‘concerned not only with family life but also with immigration and …, as a matter of wellestablished international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.’29 Pursuant to this sovereign right, the ECtHR established that the state enjoys a margin of appreciation in balancing the competing interests of the applicant and the state. Only if there are ‘obstacles’ to establishing family life in the country of origin, will the state be held to have exceeded its margin of appreciation, and thus have violated Article 8. Hence, the value-added of the right to family life in Article 8 ECHR should not be overstated. At a minimum, however, Article 8 ECHR requires an individualised assessment and this is reflected in Article 17 of the Family Reunification Directive – a horizontal provision which requires Member States to take ‘due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country or origin’ when considering an application. Also of relevance to the right to family life in families that include children is Article 24 of the Charter, which contains various rights of the child that derive, according to the Explanations, from the UN Convention on the Rights of the Child (CRC).30 Article 24(2), reflecting Article 3 CRC, establishes the principle that in all actions concerning children the best interests of the child shall be a primary consideration. Article 24(3) of the Charter, reflecting Article 9 CRC, recognises the right of the child to maintain on a regular basis a personal relationship and direct contact with both parents. Notably, the CJEU has interpreted ‘respect for that right [as] undeniably merging into the best interests of any child’.31 This common-sense position reflects the approach of the CRC’s monitoring body, the Committee on the Rights of the Child, which looks to substantive Convention rights to imbue the best

27

28 30 31

Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950). 29 Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471. ibid para 67. Convention on the Rights of the Child (New York, 20 November 1989). Case C-403/09 Deticˇek EU:C:2009:810, para 54.

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interests concept with meaning.32 In this regard, it should be noted that the right of the child to family life has a much broader rights base in the CRC than in general (that is, non-child-specific) human rights law.33 Therefore, it is hard to sustain the argument that family reunification is not in the best interests of the child. However, there is no Charter requirement to align the meaning and scope of the rights in Article 24 with the corresponding rights in the CRC (as there is with the ECHR), although failure to do so might leave Member States – all of which are parties to the CRC – in an invidious position at the international level.34 In this somewhat ambiguous context, it is helpful that the CJEU has identified the close relationship between Article 24(2) and 24(3). For its part, although the ECHR makes no reference to the best interests principle, the ECtHR has developed the practice of canvassing the best interests of the child in its interpretation of substantive Convention rights when the application involves a child.35 Accordingly, in Article 8 immigration cases the ECtHR invariably refers to the principle of the best interests of the child, considering such issues as the age of the child, his/her links with both countries and whether or not there is an effective family bond.36 The principle of the best interests of the child finds statutory expression in Article 5(5) of the Family Reunification Directive, a horizontal provision which obliges Member States to have ‘due regard to the best interests of minor children’ when examining an application.

6.4 Case Law of the CJEU At the time of writing, the Court has ruled on twelve preliminary references concerning the Family Unification Directive. Below, the cases are discussed thematically and, within each theme, in chronological order. However, it is instructive to begin by discussing the first case to come before the Court relating to the 32

33

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35 36

In its general comment 14 (2013), the Committee on the Rights of the Child has stated that ‘assessment and determination [of the child’s best interests] should be carried out with full respect for the rights contained in the Convention and Optional Protocols’, UN doc CRC/C/GC/14, para 32. In the CRC, in addition to the right to private and family life in Article 16, there is, inter alia, the right of the child not to be separated from his/her parents against their will and, where separation occurs, to maintain personal relations and direct contact with both parents (art 9), and the corresponding obligation on the state to deal with family reunification applications involving children in a ‘positive, humane and expeditious manner’ (art 10). Note, in this regard, Article 53 of the Charter, which provides that ‘[n]othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party’. See Neulinger and Shuruk v Switzerland (2010) 54 EHRR 31, para 135. See C Smyth, ‘The Best Interests of the Child in the Expulsion and First-Entry Jurisprudence of the European Court of Human Rights: How Principled is the Court’s Use of the Principle?’ (2015) 17 EJML 70.

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directive – an action for annulment by the European Parliament on fundamental rights grounds, which had a significant impact on the subsequent jurisprudence.

6.4.1

European Parliament v Council

In European Parliament v Council the European Parliament argued that the directive’s three standstill derogation provisions were contrary to fundamental rights.37 For reasons of space, the focus here is on just one of those provisions – the one in respect of which the Court conducted most of its analysis.38 Article 4(1) final sub-paragraph permits Member States to ‘verify’ whether a child over twelve arriving independently of the rest of the family meets a ‘condition for integration’ provided for by their existing legislation on the date of implementation of the directive. The Court considered four fundamental rights arguments against the legality of this provision. First, it considered whether the derogation provision was contrary to the right to family life. In the first case to mention the Charter and, indeed, the CRC, the Court assimilated the right to family life in both instruments to that in Article 8 ECHR. It could, arguably, have pitched the Charter right to family life at a higher level and should, properly, have pitched the constellation of family rights in the CRC at a higher level. However, by setting Article 8 ECHR as the lodestar, it found that the right to family life does ‘not create for the members of a family an individual right to be allowed to enter the territory of a State and cannot be interpreted as denying States a certain margin of appreciation when they examine applications for family reunification’.39 It then found that Article 4(1) first sub-paragraph of the directive, which obliges Member States to grant family reunification when the conditions in the directive are fulfilled, goes beyond the right to family life in human rights law. It imposes, according to the Court, a ‘precise positive obligation’ on Member States, thus depriving them of their margin of appreciation.40 This assertion of an EU law ‘right’ to family reunification – something that was not entirely obvious from the text of the directive – was remarkable. However, on a less positive note, it allowed the Court to find that the impugned derogation provision simply retains the margin of appreciation and thus is consistent with Article 8 ECHR, provided that, in applying it, Member States pay ‘due regard’ to the best interests of the child per Article 5(5), and take ‘due account’ of the individual circumstances of each case per Article 17.

37 38

39

Case C-540/03 European Parliament v Council EU:C:2006:429. For a more complete analysis of the judgment, see M Butterman, ‘Case C-540/03, Parliament v Council’ (2008) 45 CMLRev 245. 40 European Parliament v Council (n 37) para 59. ibid para 60.

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Second, the Court attempted to reconcile the apparent incompatibility between integration, which is the overall aim of the directive and the raison d’être for family reunification, and imposing a condition for integration on children over twelve arriving independently of the rest of the family. As argued by the European Parliament, since integration conditions can prevent family reunification – which is a proxy for integration – it is hard to see how they can be consistent with the overall objective of the directive, which is integration. The Court disagreed. The derogation regarding children over twelve arriving independently of their family was ‘intended to reflect the children’s capacity for integration at early ages and … to ensure that they acquire the necessary education and language skills in school’.41 Hence, imposing on such children a condition for integration facilitates integration.42 This reconciliation of integration conditions with the aim of integration paved the way for the Court to uphold other controversial integration measures in later cases. Third, the Court considered whether the derogation regarding children over twelve arriving independently of the rest of the family was discriminatory. The European Parliament had argued that it unjustifiably differentiated between children over twelve arriving independently and spouses. The Court rejected this argument by finding a legitimate aim for the differentiation, namely, the integration difficulties of children who have lived abroad without their families for a long time. The Court did not adduce any evidence in support of this proposition, nor test whether the differential treatment of such children was proportionate to the aim. It then fell back on the comparability trope – that only likes must be treated alike and therefore that unalike groups need not be treated the same.43 It observed that spouses are incomparable to children, because the objective of marriage is long-lasting life together, whereas children over twelve will not necessarily remain for a long time with their parents. The lack of real engagement by the Court with the issue of non-discrimination also features in later cases. Finally, the Court assessed whether the impugned derogation provision in Article 4(1) final sub-paragraph was contrary to the principle of the best interests of the child. Here, the Court held that Article 4(1), with its overall emphasis on family reunification of minor children, demonstrates that the child’s best interests were ‘a consideration of prime importance’ in the adoption of that provision and ‘it does not appear that its final sub-paragraph fails to have sufficient regard to those interests’.44 The Court’s logic is dubious, however, since the impugned provision derogates from the general pro-homine ethos of the article. Moreover, the idea that the derogation is in – or, at least, does not fail to have sufficient regard 41 43 44

42 ibid para 67. ibid para 69. See P Weston ‘The Empty Idea of Equality’ (1982) 95 Harvard Law Review 537. European Parliament v Council (n 37) para 73.

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to – the best interests of the child is difficult to reconcile with a rights-based interpretation of the best interests principle. The Court went on to say that it does not appear that the final sub-paragraph ‘authorises Member States which choose to take account of a condition for integration not to have regard to [the child’s best interests].’45 This suggests that the best interests principle will be used by Member States like a trump card – a somewhat unlikely suggestion that has not been borne out in state practice.46 The Court’s impoverished approach to the best interests principle resurfaces in later cases. The precedential value of the Court’s judgment should have been limited given that only one Member State availed itself of the standstill derogation provision. European Parliament v Council has had a significant influence – both positive and negative – on subsequent cases, however.

6.4.2 The Resources Cases A trilogy of early cases concerned the interpretation of Article 7(1)(c) of the directive, a provision that permits Member States to require the applicant to have ‘stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State’. In Chakroun, in 2010, the question was whether this allowed the Netherlands to establish a (rather high) minimum income level that applicants were required to meet.47 The Court answered firmly in the negative on the basis of a variety of interpretative strategies: precedent (the articulation in European Parliament v Council of a subjective right to family reunification once the conditions in the directive are fulfilled and the corresponding requirement to interpret any conditions strictly); the general principle of effectiveness, which precludes undermining the objective of the directive ‘which is to promote family reunification’;48 the right to respect for family life in Article 8 ECHR and Article 7 of the Charter; analogy with EU free movement law; and the requirement in Article 17 for an individualised decision which militates against a blanket income level. A second question for the Court concerned whether it was permissible to impose more stringent income requirements on applicants in cases of family formation. Again, the Court answered in the negative, based on a literal, schematic

45 46

47 48

ibid. See EMN Synthesis Report (n 19) s 5.3.4, which states that ‘comprehensive and specific guidelines concerning policy and practice measures in [relation to the best interests of the child] seem … to be scarce’. Case C-578/08 Chakroun EU:C:2010:117. On this point, see J Hardy, ‘The Objective of Directive 2003/86 is to Promote the Family Reunification of Third Country Nationals’ (2012) 14 EJML 439.

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and historical reading of the provision, noting that ‘interpretation is consistent with Article 8 of the ECHR and Article 7 of the Charter, which do not draw any distinction based on the circumstances in and time at which a family is constituted’.49 Notably, Advocate General Sharpston had drawn out the fundamental rights implications of the impugned measure only in the context of the second question and in this regard the Court went further than the opinion in its reliance on fundamental rights.50 Chakroun was followed in 2012 by O, S and L.51 In this case, a number of TCN women, who had been granted permanent residence in Finland on the basis of having sole custody of their Union citizen children by previous relationships, wished to secure the residency of their new TCN spouses with whom they had TCN children. As observed by the Court, failure to grant such residency would result either in the reconstituted family moving to be with the TCN spouses, which would involve the separation of the Union citizen children from their fathers, or in the reconstituted family remaining in Finland without the TCN fathers, which would result in the separation of the TCN children from their fathers. The case was ostensibly an (unsuccessful) Zambrano-type case but, following the opinion of Advocate General Bot, the Court invoked the Family Reunification Directive proprio motu.52 The difficulty was that the TCN wives, who could have been sponsors under the directive, did not appear to meet the requirement of stable and regular resources in Article 7(1)(c). The Court reiterated many of the points made in Chakroun, including the fundamental rights dimension, but developed its analysis of the right to family life in light of the fact that the case concerned children. Thus, after noting the requirements of Article 7 of the Charter, the Court observed that: That provision of the Charter must also be read in conjunction with the obligation to have regard to the child’s best interests, recognised in Article 24(2) of the Charter, and with account being taken of the need, expressed in Article 24(3), for the child to maintain on a regular basis a personal relationship with both parents.53

The Court concluded that, when implementing the directive and examining applications for family reunification, the competent national authorities must make ‘a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned’, thus allowing itself to imply that the Member State had not done so.54

49 50 51 52 53

Chakroun (n 47) para 63. Case C-578/08 Chakroun EU:C:2009:776, Opinion of AG Sharpston. Joined Cases C-356/11 and C-357/11 O, S and L EU:C:2012:776. Joined Cases C-356/11 and C-357/11O, S and L EU:C:2012:595, Opinion of AG Bot. 54 O, S and L (n 51) para 76. ibid para 81.

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By contrast, in the 2016 case of Khachab the fundamental rights analysis is minimal.55 The question in this case was whether Spain’s assessment that the sponsor would not have stable and regular resources going forward based, not on a fixed moment in time, but on the pattern of his income over the preceding six months, was permitted by Article 7(1)(c) of the directive. Although the Court reiterated its statement in O, S and L about the need for states to interpret and apply the directive in light of Article 7 of the Charter, the Court itself did not proceed to do so. Rather, it applied a literal, schematic and purposive reading to Article 7(1)(c), which accommodated Spain’s assessment method, and then considered whether the method was consistent with the general principle of proportionality, finding that it was. It is submitted that Chakroun and Khachab have more in common than appearances might suggest, notwithstanding the outcomes. In Khachab the Court referred to, but did not rely on, fundamental rights. This was because there was a clear statutory answer to the question referred, bolstered by one of the general principles, and it is not apparent that a fuller consideration of the right to family life would have changed that answer. In Chakroun the Court did rely on fundamental rights, but it is difficult to single out the role that fundamental rights played among the other interpretative principles invoked by the Court, all of which pointed in the same direction. In this regard, the outlier is O, S and L, because fundamental rights was a game changer. The differentiating factor seems to be the fact that the case concerned children. Accordingly, one might legitimately expect the Court to concern itself with the Charter principle of the best interests of the child in all cases concerning children. However, as the following sub-sections reveal, this is not the case.

6.4.3 The Refugee Cases Three refugee cases have been judged in the past eighteen months (at the time of writing). A and S, adjudicated in April 2018, concerned the interpretation of Article 10(3) of the directive, which obliges Member States to authorise family reunification of parents ‘if the refugee is an unaccompanied minor’.56 The difficulty in this case was that the unaccompanied minor had ‘aged out’ before she was granted refugee status and thus could apply for family reunification. Relying principally on the general principles of effectiveness, equal treatment and legal certainty, and noting that refugee status is declaratory and not constitutive, the Court held that the relevant date for assessing minority is the date on which the applicant applied for refugee status. Otherwise, as the Court observed, applications from two unaccompanied minors in similar situations could be decided differently 55

Case C-558/14 Khachab EU:C:2016:285.

56

Case C-550/16 A and S EU:C:2018:248.

Migration: Family Life and Best Interests of the Child

depending on the speed of the asylum process – something over which they have no control. The Court went on to adduce a further argument in support of its decision, based on the Charter principle of the best interests of the child. Drawing from the recast Asylum Procedures and Qualification Directives, the Court noted the need to ‘treat applications for international protection from unaccompanied minors urgently in order to take account of their particular vulnerability’.57 In other words, the Court relied by analogy on the notion of vulnerability in the instruments of the Common European Asylum System to imbue the best interests principle with meaning. The tenor of the judgment is very much in line with the opinion of Advocate General Bot.58 By contrast, in K and B, judged in November 2018, the Court omitted to conduct any fundamental rights analysis whatsoever.59 This case required the Court to interpret Article 12(1) of the directive, which in the first sub-paragraph exempts refugees from the requirements in Article 7 relating to, inter alia, financial self-sufficiency, but in the third sub-paragraph permits Member States to subject refugees to those requirements if the application for family reunification is not submitted within a period of three months after the granting of refugee status. K and B concerned a beneficiary of subsidiary protection (whose situation was assimilated to a refugee under the Netherlands transposing legislation and hence who fell within the scope of EU law) who had applied for family reunification with his wife and minor daughter but not within the three-month limit. The Netherlands Ministry of Justice and Security rejected his application under the preferential regime for refugees while affording him the possibility of lodging a fresh application under the general (ie non-refugee) rules. The question for the Court was whether this was permissible under the directive. The Court answered in the affirmative based on a literal reading of the provision, subject to exemptions for ‘objectively excusable’ situations.60 Contrary to the opinion of Advocate General Mengozzi, it categorised the issue as essentially a procedural one – whether to process an application for family reunification under one regime or another.61 According to the Court, this procedural issue had no bearing on the Member State’s subsequent consideration of the merits of the application, which still had to be carried out with due regard to the best interests of minor children per Article 5(5) and to the individual circumstances of the case per Article 17. One is reminded here of the Court’s (misplaced) faith in the best interests principle as a trump card in European Parliament v Council. The Court did acknowledge that having to make a fresh application, with the associated delay

57 59 61

58 ibid para 58. Case C-550/16 A and S EU:C:2017:824, Opinion of AG Bot. 60 Case C-380/17 K and B EU:C:2018:877. ibid para 62. Case C-380/17 K and B EU:C:2018:504, Opinion of AG Mengozzi.

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and administrative burden, was ‘undoubtedly inconvenient’ for the applicant, but found that ‘nonetheless such inconvenience is not great enough to be regarded, in principle, as preventing that person from effectively asserting his right to family reunification in practice.’62 Again, departing from the Advocate General’s opinion, the Court made no reference to the Charter. The lack of a fundamental rights analysis had a marked impact on the judgment. Refugees (and beneficiaries of subsidiary protection) ipso facto meet the ECtHR’s insurmountable obstacles/exceptional circumstances test and therefore are entitled to family reunification under Article 8 ECHR (and hence Article 7 of the Charter) regardless of their financial situation.63 Furthermore, although the Court reminded Member States of their statutory obligation to have due regard to the best interests of minor children when examining the substance of an application, it implicitly excused Member States from considering the best interests of the child when deciding whether to apply Article 12(1) third sub-paragraph in the first place. Having to make a fresh application for family reunification under the more stringent general rules is not just ‘inconvenient’, as characterised by the Court. At best it delays the reunification of the child and parent, and at worst it militates against the reunification of the child and the parent. Therefore, it cannot be construed as being in the best interests of the child. Article 5(1) of the directive directs Member States to have due regard to the best interests of the child ‘[w]hen examining an application’. The Court could have interpreted this provision as extending to the procedural as well as the substantive examination of an application. This would have been consistent with the subject matter scope of the best interests principle as established in the Charter, which in Article 24(2) refers to the child’s best interests as a primary consideration in ‘all actions relating to children’ (emphasis added). The most recent refugee case, judged in March 2019, is E.64 Here, a beneficiary of subsidiary protection (whose situation was assimilated to that of a refugee by the Netherlands transposing legislation and who therefore fell within the scope of the directive) had been denied family reunification with her nephew, an orphan to whom she was guardian by Eritrean custom. The application was refused on the grounds that the aunt had not provided any official documentary evidence of the relationship nor a reasonable explanation for the lack thereof, although this was debatable on the facts. The question for the Court was whether the refusal was compatible with Article 11(2) of the directive, which requires Member States to take account of other evidence in such situations and precludes them from making a negative decision solely on the basis of the lack of official documentary

62 64

63 K and B (n 59) para 61. See Tanda-Muzinga v France, App no 2260/10 (ECtHR, 10 July 2014). Case C-635/17 E EU:C:2019:192.

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evidence. In its judgment the Court mentioned, as usual, the general principle of effectiveness. It also interpreted the directive schematically, holding that Article 11(2) has to be interpreted in light of other provisions, such as those requiring Member States to examine applications for family reunification in the interests of the children concerned (Article 5(5)) and on a case-by-case basis (Article 17). These provisions, however, had to be interpreted in the light of the Charter principle of the best interests of the child and the right of the child to maintain a personal relationship with both parents. Here, the Court went further than the opinion of Advocate General Wahl, which made no reference to either the statutory or Charter principle of the best interests of the child.65 Indeed, the Court sternly reprimanded the State Secretary for failing to consider the best interests of the child.66 What can be inferred from the refugee cases? In A and S the question referred arose from a genuine ambiguity in the statute, which could not easily be answered by a literal or schematic reading of the text. Accordingly, the Court relied on various general principles, on interpretation by analogy with asylum law and on the Charter in its interpretative task. By contrast, in both K and B and E the statutory position was clear. However, in K and B, invoking the Charter would have meant arriving at a contra legem interpretation of the text, something that the Court was clearly unprepared to do; whereas in E, invoking the Charter meant arriving at a (much more palatable) pro legem interpretation of the text.

6.4.4 The Integration Cases In the six family reunification cases to have come before the CJEU, the Court has made no reference whatsoever to fundamental rights. It is no coincidence that five of these cases relate to the controversial subject of integration. The first case was Noorzia in 2014, which concerned the interpretation of Article 4(5) of the directive.67 This article provides that ‘[i]n order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her’ (emphasis added). Noorzia’s application for family reunification with her spouse was rejected by the Austrian authorities on the basis that the spouse had not reached twenty-one at the time the application for family reunification was lodged, although he had reached that age by the time the application was decided. The question for the Court was whether the age threshold should be set at the moment of the decision, as suggested by the text, or at the moment of the application. In a judgment in all respects in diametric opposition to the opinion

65 67

Case C-635/17 E EU:C:2018:973, Opinion of AG Wahl. Case C-338/13 Noorzia EU:C:2014:2092.

66

E (n 64) para 77.

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of Advocate General Mengozzi, the Court opted for the latter.68 The Court argued that the earlier date was justified by the aim of ensuring better integration and preventing forced marriages articulated in the text of Article 4(5) itself; the fact that it did not impair the general principle of effectiveness; and the fact that it was consistent with the principles of equal treatment and legal certainty, since it did not predicate the outcome on the length of the process – something over which the applicant had no control. This judgment has been criticised in the literature because of the contra legem interpretation of the wording of Article 4(5) and the fact that the Court did not refer to the Article 17 requirement to take due account of the individual circumstances of the case.69 One might add that the Court failed to adopt a schematic reading of the provision. Indeed, an interpretation of Article 4(5) whereby spouses have to wait three years after attaining majority before they can apply to be reunited, sits uncomfortably with Article 8 first sub-paragraph, which allows Member States to require the sponsor to have ‘stayed lawfully in their territory for a period not exceeding two years before having his/her family members join him/ her’ (emphasis added). The judgment has also been criticised for its failure to make any reference to fundamental rights and, in particular, to the principle of the best interests of the child.70 Although neither the applicant in Noorzia nor her spouse were children, Article 4(5) is quite likely to be applied to under-eighteens and thus the Court missed an important opportunity to clarify how the aim of preventing forced marriage intersects with the principle of the best interests of the child. In some circumstances – the Syrian refugee crisis, for example – it is possible to envisage a situation where it might be in the best interests of the child to marry, and thus be somewhat insulated from sexual and gender-based violence in the general lawless environment, and even more so if it results in family reunification in an EU Member State. Two further provisions of the directive explicitly or implicitly permit integration measures. The first provision is Article 7(2) first sentence, which allows Member States to ‘require third country nationals to comply with integration measures, in accordance with national law’. In Dogan (2014) and K and A (2015) the question arose as to whether Article 7(2) first sentence authorised Germany and the Netherlands, respectively, to impose pre-entry integration conditions (ie civic

68 69

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Case C-338/13 Noorzia EU:C:2014:288, Opinion of AG Mengozzi. G Milios, ‘Family Reunification for Third-Country Nationals: Minimum Age for Spouses, Integration Measures and the Application of the Individual Assessment, Comments on Noorzia and Dogan’ (2015) 17 EJML 127. M Klaassen and P Rodrigues, ‘The Best Interests of the Child in EU Family Reunification Law: A Plea for More Guidance on the Role of Article 24(2) Charter’ (2017) 19 EJML 191.

Migration: Family Life and Best Interests of the Child

integration tests) on family members.71 The fact that integration measures could be imposed prior to entry was implicit in the text, but the assimilation of measures and conditions was not apparent from the text and thus needed adjudication.72 The second provision is Article 15, which makes no reference to integration at all. Article 15 establishes the right of adult family members to an autonomous residence permits after five years and provides that the conditions relating to the granting and duration of the autonomous residence permit are to be established by national law. In K and C and A, both judged in November 2018, the question arose as to whether this permitted the Netherlands to predicate the grant of an autonomous residence permit on an integration test.73 In all four judgments the Court found that integration tests are, in principle, permissible under the two provisions because they are capable of facilitating integration and thus pursue a legitimate aim. However, it struck down the particular integration tests at issue in light of the general principles of proportionality and effectiveness, and the statutory requirement in Article 17 to decide each case in light of its own specific circumstances. Thus, the judgments were pro-migrant in casu, although not on the broader principle. The most noteworthy thing about the four judgments is what is not in them. First, they lack a robust schematic approach to interpretation. Taking Article 7(2) first, the expression ‘integration measures’ can be contrasted with the expression ‘a condition for integration’ in Article 4(1) final sub-paragraph (previously discussed in Section 6.4.1 in the context of European Parliament v Council). This suggests a conceptual distinction between integration measures and integration conditions. Indeed, a similar distinction is made in the Long-Term Residents Directive, where the two terms are juxtaposed in two different contexts.74 In Dogan Advocate General Mengozzi was very much alive to the distinction and found that Article 7(2) does not authorise the imposition of integration conditions. However, the Court avoided engaging with the issue by declining to consider the case from the perspective of the Family Reunification Directive at all, analysing it exclusively in terms of the EEC-Turkey Association Agreement, which also applied. In K and A Advocate General Kokott went to great lengths to play down the distinction between integration conditions and integration measures.75 For its part, the Court simply ignored the debate, implicitly conflating integration measures and integration conditions, and focusing only on the textually unassailable issue of whether or not integration measures could be imposed prior to entry. As for Article 15,

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Case C-138/13 Dogan EU:C:2014:2066; Case C-153/14 K and A EU:C:2015:453. See art 7(2) second sentence. Case C-484/17 K EU:C:2018:878; Case C-257/17 C and A EU:C:2018:876. Dir 2003/109/EC (n 14). Case C-153/14 K and A EU:C:2015:186, Opinion of AG Kokott.

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which makes no reference to integration at all, a schematic approach to interpretation suggests that it relates merely to procedural conditions for the grant of an autonomous residence permit. However, in C and A and K, the Court made no attempt to interpret Article 15 schematically, despite the invitation by Advocate General Mengozzi in C and A to do so.76 Second, the judgments lack a fundamental rights perspective. None of the judgments considered the integration conditions from the point of view of the right to family life. Nor was any reference made to the principle of the best interests of the child, even though two of the cases – K and A and Dogan – involved children. Moreover, despite various clues that the integration tests at issue were indirectly discriminatory, the Court omitted to analyse the facts from a non-discrimination angle. This last point is worth developing. In all four cases the applicants were predominantly women who had variously: sought exemptions from the test on medical, including psychological, grounds; had positive test results invalidated on the grounds of illiteracy; been unable to afford the fee for sitting the test; and repeatedly failed the test. It is well established in the literature that integration tests are used by states precisely to screen out supposed ‘net burden’ immigrants.77 In K and C and A the Court held that specific individual circumstances, such as age, illiteracy, level of education or health, which prevent a family member from passing the exam should lead to an exemption from having to sit it. This seems to be an oblique acknowledgement of the concept of indirect discrimination. In a similar vein, in K and A the Court held that integration measures must not be aimed at ‘filtering’ applicants for family reunification.78 Nonetheless, one wonders whether the general principles deployed by the Court, with their emphasis on individualised balancing and assessment, can get to the heart of indirect discrimination – that is, facially neutral distinctions that have an adverse impact on members of particular population groups. Fundamental rights, and in particular the right to non-discrimination ‘on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’ in Article 21 of the Charter (emphasis added) might supply a more nuanced analytical tool. Here again, it is to be regretted that the Court did not engage in any fundamental rights analysis. To sum up, it is possible to discern a definite pick-and-mix approach by the Court to principles of interpretation and superior norms in the integration cases. In Noorzia, various general principles were used against a literal and schematic 76 77

Case C-257/17 C and A EU:C:2018:503, Opinion of AG Mengozzi. See Floya Anthias and Mojca Pajnik (eds) Contesting Integration, Engendering Migration, Theory 78 and Practice (Palgrave Macmillan 2014). K and A (n 71) para 57.

Migration: Family Life and Best Interests of the Child

reading of the text; in the integration test cases the Court eschewed a robust schematic reading of the text, and in one of them even omitted to apply the directive at all; and in all cases the Court failed to discuss the Charter. There was nothing inevitable about the Court’s reading of the text of the directive in these cases. Indeed, fundamental rights could have been relied on by the Court to prise open an alternative reading. However, presumably for political reasons, the Court eschewed that possibility, embracing what Thym calls a ‘social or cultural’ approach to migrant integration, as opposed to a rights-based approach.79

6.4.5 The Fraud Case YZ and Others, judged in March 2019, concerned the withdrawal of residence permits from a wife and son who, unknown to them, had benefitted from a fraudulent application for family reunification by the husband/father.80 The question for the Court was whether this was permissible pursuant to Article 16(2) of the directive, which allows Member States to withdraw family members’ residence permits where it is shown that fraud was committed, bearing in mind the requirement in Article 17 for Member States to take due account of individual circumstances whenever they withdraw a residence permit. Following the opinion of Advocate General Mengozzi, the Court adopted a literal and schematic interpretation of Article 16(2) to conclude that Member States are given discretion to withdraw a residence permit, but a rights-based interpretation of Article 17 to conclude that any withdrawal cannot be automatic but must be assessed in the light of the right to family life in the Charter.81 Although the son in the case was no longer a minor and the Court did not explicitly refer to the principle of the best interests of the child, it did refer to the need to consider ‘the age at which the [son] arrived in that Member State and the possibility that he has been brought up and received an education there’.82 Although the Court, as it often does, left it to the Member State to apply the law to the facts of the case, one is left with the distinct impression that the Court considered that the Netherlands had not complied with fundamental rights in withdrawing the wife’s and son’s residence permits. In this regard, the judgment indicates a higher level of protection than is available under Article 8 ECHR, judging by the controversial Butt v Norway judgment, in which the ECtHR identified the children with the (mis)behaviour of their parents.83

79

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D Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law: Comments on P & S and K & A’ (2016) 18 EJML 89. Case C-557/17 YZ and Others EU:C:2019:203. Case C-557/17 YZ and Others EU:C:2018:820, Opinion of AG Mengozzi. YZ and Others (n 80) para 54. Butt v Norway App no 47017/09 (ECtHR, 4 December 2012).

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6.5

Conclusion

If EU migration law has been described as ‘differentiated and fragmented’, this holds true not only for the text of the Family Reunification Directive and for state practice but also for the case law of the CJEU. The Court relies on fundamental rights (to a greater or lesser extent) in half of the judgments, while in the other half it does not mention fundamental rights at all. Contrary to what might be expected, the record is worse when a case concerns children or the Court is called upon to interpret a provision that has a clear application to children: in only three of seven such cases did the Court invoke the principle of the best interests of the child. The reasons are various. First, there is a residual preference for reliance on statutory interpretation, interpretation by analogy and general principles of EU law such as effectiveness, which may reflect the Court’s historical modus operandi in the free movement context. Where fundamental rights point in the same direction, they are invoked in a central or peripheral way. Second, however, when it comes to the acutely sensitive political issue of integration, the Court is quite prepared to jettison usual principles of statutory interpretation to support an outcome deferential to the Member States. As fundamental rights tend to be pro-migrant, these are simply ignored, often contrary to the opinion of the Advocate General. Third, nonetheless, there are surprises, when the Court delivers a more robust fundamental-rights-based judgment than might be anticipated. It is reasonable to conclude that the Court’s ambiguity reflects precisely the tensions that persist and even grow over EU harmonisation in this sensitive field of AFSJ law and policy.

7

The EU Fundamental Right to Asylum: In Search of Its Legal Meaning and Effects MADALINA MORARU

7.1 Key Challenges for the EU Fundamental Right to Asylum There could hardly be a more opportune moment than now1 to assess the legal scope, content and effects of the EU fundamental right to asylum as enshrined in Article 18 of the EU Charter of Fundamental Rights (the Charter). In response to the so-called refugee crisis, the EU and Member States have adopted a wide range of policies that prevent asylum seekers from accessing asylum status determination procedures in Europe. These growing policies encompass building physical, virtual and mental walls;2 interceptions and push-backs;3 building detention facilities in transit zones;4 recourse to externalised status determination procedures escaping parliamentary and judicial scrutiny;5 and the fast return of asylum seekers.6 The effectiveness of the right to asylum is further endangered by certain Member States reneging on their EU solidarity commitments to help with the processing

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This chapter reflects the state of legal developments up until April 2019. See A Benedicto and P Brunet, Building Walls: Fear and Securitization in the European Union (Centre Delàs d’Estudis per la Pau 2018). See eg Khlaifia and Others v Italy App no 16483/12 (ECtHR,15 December 2015); ND and NT v Spain Apps nos 8675/15 and 8697/15 (ECtHR Grand Chamber, 13 February 2020); Jacek Białas, Marta Górczyn´ ska and Daniel Witko, ‘Access to Asylum Procedure at Poland’s External Borders: Current Situation and Challenges for the Future’ (Marta Górczyn´ ska tr, Helsinki Foundation for Human Rights 2019). Joined Cases C-924/19 PPU and C-925/19 PPU FMS and Others EU:C:2020:367. See D Gyollai and A Amatrudo, ‘Controlling Irregular Migration: International Human Rights Standards and the Hungarian Legal Framework’ (2018) 16 European Journal of Criminology 432. On third countries that are not parties to the Geneva Convention of 1951, and are repeatedly denounced for human rights violations, see, for Tunisia, V Badalicˇ, ‘Tunisia’s Role in the EU External Migration Policy: Crimmigration Law, Illegal Practices, and their Impact on Human Rights’ (2019) 20 Journal of International Migration and Integration 85; for Libya, UNHCR, ‘UNHCR Position on the Designations of Libya as a Safe Third Country and as a Place of Safety for the Purpose of Disembarkation Following Rescue at Sea’ (September 2020); for Turkey, C Favilli, ‘EU-Turkey Cooperation to Stem the Flows of Irregular Migrants and Asylum Seekers: Goal Achieved?’ [2016] Diritti Umani e Diritto Internazionale 405. See eg Patrizia Caiffa, ‘Decreto Minniti-Orlando. Trucco (Asgi): “Un muro di norme che limitano il diritto d’asilo”’ SIR (6 April 2017).

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of asylum claims, leaving the responsibility of upholding the right to asylum to a few, already overburdened Member States.7 The aforementioned policies can be criticised for gradually eroding the EU fundamental right to asylum, transforming it into a theoretical construct, accessible in practice only to the few individuals not caught by these containment policies. Even if asylum seekers overcome the barriers to accessing the EU asylum procedure, the effectiveness of the EU fundamental right to asylum is further undermined by divergences in the implementation of the Common European Asylum System (CEAS) instruments, which have led to variations among Member States with respect to recognition rates8 and international protection status.9 The security paradigm, which appears increasingly to be shaping the EU’s policy response to migration issues, not only limits the exercise of the EU fundamental right to asylum,10 but also negatively impacts on the overall Area of Freedom, Security and Justice.11 An in-depth analysis of the scope and content of the EU fundamental right to asylum is necessary, as it should inform the ongoing legislative reform of the CEAS12 and show whether or not the EU’s policies in response to the solidarity crisis over refugee protection comply with the EU fundamental right to asylum. The scope, content and justiciability of the EU fundamental right to asylum are still open questions, perhaps due: to the open-ended formulation of Article 18 of the Charter; the fact that the right’s content is dependent on international refugee law, which is itself also unclear on what exactly the international right to asylum

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Such as the solidarity obligations stemming from the EU relocation decisions (Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L239/146; Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2015] OJ 248/80. See Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council EU:C:2017:631; Joined Cases C-715/17, C-718/17 and C-719/17 European Commission v Poland, Hungary and Czech Republic EU:C:2020:257. For example, the success rates for Syrian nationals seeking asylum in selected Member States vary considerably between France, Germany, Greece and Sweden; see Eurostat statistics for the third quarter of 2019. As reflected in Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17 Ibrahim EU:C:2019:219. ‘Communication from the Commission to the European Parliament, the European Council, the Council and the European Investment Bank on Establishing a New Partnership Framework with Third Countries under the European Agenda on  Migration’ COM (2016) 385 final; Frontex, 2017 Risk Analysis Report: The European Council Conclusions (28 June 2018); B Frelick, I Kysel and J Podkul, ‘The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants’ (2016) 4 Journal on Migration and Human Security 190. See Benedicto and Brunet (n 2). Communication from the Commission to the European Parliament and the Council towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe COM (2016) 197 final.

The EU Fundamental Right to Asylum

entails;13 and the lack of a clear definition of the EU fundamental right to asylum in CJEU case law.14 Although, overall, the Charter can be praised for taking an innovative and contemporary stance on human rights codification,15 Article 18 is worded in a broad and convoluted manner that risks making this right legally meaningless. Notably, there is no reference to the precise normative components or the subjects of the right. Instead, Article 18 defines the right to asylum in relation to the rules of the Refugee Convention16 and EU Treaties. Commentators are divided between those who interpret Article 18 of the Charter as limited to a right to seek asylum,17 and those who argue for a more liberal interpretation of Article 18 as also conferring an individual right to be granted asylum where the requirements of EU asylum law are met.18 As a result, important questions arise as to the scope of Article 18 of the Charter, compared to the principle of non-refoulement guaranteed by the Refugee Convention; the extraterritorial application of the EU fundamental right to asylum;19 the normative components of the right to asylum; and the enforceability of the EU fundamental right to asylum at EU and domestic levels. In addressing these questions, this chapter will begin by analysing the scope of application of the EU fundamental right to asylum as interpreted by the CJEU

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See esp Guy S Goodwin-Gill, ‘“The Right to Seek Asylum”: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23 International Journal of Refugee Law 443, 444; T GammeltoftHansen and H Gammeltoft-Hansen, ‘The Right to Seek – Revisited: On the UN Human Rights Declaration Article 14 and Access to Asylum Procedures in the EU’ (2008) 10 EJML 439. See Section 3.3. GN Toggenburg, ‘The EU Charter: Moving from a European Fundamental Rights Ornament to a European Fundamental Rights Order’ in G Palmisano (ed) Making the Charter of Fundamental Rights a Living Instrument (Brill 2014); G Gaja, ‘The Charter of Fundamental Rights in the Context of International Instruments for the Protection of Human Rights’ (2016) European Papers 792. Convention relating to the Status of Refugees (28 July 1951) 189 UNTS 137 (‘Refugee Convention’). H Labayle, ‘The Impact of Article 18 of the Charter of Fundamental Rights’ in P de Bruycker and others, Setting Up a Common European Asylum System(PE 425.622, EP 2010) 427–33; K Hailbronner and J Gogolin, ‘Territorial Asylum’ in Max Planck Encyclopedia of Public International Law (OUP 2013); see C Ladenburger, ‘L’Apport de la Charte dans le Domaine des Droits Civils et Politiques’ in JY Carlier and O De Schutter (eds), La Charte des Droits Fondamentaux de l’Union Européenne (Bruylant 2002). MT Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law’ (2008) 27(3) Refugee Survey Quarterly 33; V Moreno-Lax, Access to Asylum (OUP 2017); SF Fabio Nicolosi, ‘Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union’ (2017) 23 ELJ 94; C Costello, The Human Rights of Migrants and Refugees in European Law (OUP 2015); ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (UN doc A/71/384, 2016) 7. See Case C-638/16 X and X EU:C:2017:173; MN and Others v Belgium App. no 3599/18 (ECtHR Grand Chamber, 5 May 2020).

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(Section 7.2). It will then turn to the content of the EU fundamental right to asylum (Section 7.3). To this end, it will first consider the case law of the CJEU and domestic courts interpreting Article 18 and then additional legal sources, focusing in particular on the principle of non-refoulement enshrined in the Refugee Convention and the rights to asylum provided for in the EU Treaties and domestic constitutions. In conclusion, the author argues that the legal meaning of the right to asylum and its effectiveness have been clarified and enhanced by national courts rather than the CJEU, although the CJEU’s contribution has been essential in enhancing procedural safeguards concerning the EU fundamental right to asylum (Section 7.4).

7.2 The Scope of Application of the EU Fundamental Right to Asylum: Contrasting Case Law One of the most controversial issues regarding the application of the EU fundamental right to asylum is the territorial scope of application of Article 18 of the Charter. The question of whether the right to asylum applies only within EU territory or also outside, in third countries, has long dominated migration-related debates.20 The scope of application of Article 18 is determined by Article 51 of the Charter, which provides that its fundamental rights bind the EU institutions and bodies in all their activities, whereas it applies to the Member States only when they implement EU law.21 While the extraterritorial application of the international right to asylum is approached from the perspective of the international responsibility of states,22 the territorial application of the EU right to asylum is largely dependent on the substantive scope of application of EU law.23 The opportunity to clarify the territorial reach of the EU fundamental right to asylum came in 2016 with the now-famous case of the Syrian humanitarian visas. In this case, a Christian Syrian family sought a safe means of availing themselves of the EU’s asylum procedure

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See ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A European Agenda on Migration’ COM (2015) 240 final; JC Hathaway and T Gammeltoft-Hansen, ‘NonRefoulement in a World of Cooperative Deterrence’ (2015) 53 Columbia Journal of Transnational Law 235. 22 See Chapter 1 by Sara Iglesias Sánchez. See Hathaway and Gammeltoft-Hansen (n 20). The complexity of this issue should not be underestimated, as shown by the large number of Charter-related cases that the CJEU found to lie outside the scope of EU law: notably, 22 per cent in 2012, though recently decreasing to 6 per cent in 2017, according to data on https://curia .europa.eu/.

The EU Fundamental Right to Asylum

by filing a visa application with the Belgian embassy in Beirut. Belgium was one of the Member States that initially used to issue humanitarian visas allowing Christian Syrians to enter Belgium. However, it later changed its approach and refused to issue such visas, including for vulnerable groups, on the ground that the Syrians did not intend to come for short stays but rather to seek asylum, which would require a visa for a long-term stay. These administrative refusals were challenged before the Belgian Council of Alien Law Litigation (CALL), which initially ordered the administration to deliver a laissez-passer or short stay visa under human rights obligations.24 This judgment attracted a harsh political backlash and, although upheld by the Council of State, was never executed by the Belgian Secretary of State. Faced with the administration’s persisting non-compliance, as well as internal judicial contestations,25 the CALL decided to refer the question to the Constitutional Court and the CJEU for a preliminary ruling. Briefly, the CALL asked the CJEU whether Article 4 and/or Article 18 of the Charter, Article 3 ECHR or the Refugee Convention impose a positive obligation on the Member States to issue a humanitarian visa.26 The CJEU did not answer this question, because, contrary to the opinion of the Advocate General,27 it found that the provisions of the Charter were not applicable. Like the Belgian administration, the CJEU found that the applicant’s intention was to apply for international protection, which does not fall within the scope of Article 25(1)(a) of the Visa Code.28 Furthermore, the CJEU found that EU asylum law applies on EU territory only, which meant that asylum applications lodged at consular or diplomatic missions, as was the case with the Syrian family, lay outside its scope.29 However, CJEU case law on the scope of application of the Charter with regard to visa refusals based on a suspected overstay is not entirely consistent. In El Hassani, which was subsequent to the Syrian Humanitarian Visas case, the CJEU found one of the provisions at issue in X and X – Article 32 of the Visa Code – to be applicable and sufficient to trigger the application of Article 47 of the Charter.30 The Polish consul refused to issue a short-term visa to a Moroccan national on the grounds that, on account of a family connection (the presence of his Polish wife and children in Poland), it was uncertain whether he would leave the EU within

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Judgment no 176577 (CALL, 20 October 2016). For more details, see S Bodart, C Fransen, C Dubois, ‘EU Charter and the Dialog of the Judges in Asylum and Immigration Cases’ (2020) EUI Working Paper RSCAS 2020/10. 27 See X and X (n 19). See Case C-638/16 X and X EU:C:2017:93, Opinion of AG Mengozzi. Regulation (EC) 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L243/1. 30 X and X (n 19) para 49. Case C-403/16 El Hassani EU:C:2017:960.

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the ninety-day limit. In El Hassani, the CJEU did not find the alleged intention to overstay to be an argument against the application of EU law or of the Charter, as it had done in X and X. On the contrary, the CJEU found that the Polish authorities had violated Article 47 of the Charter, because they deprived the individual of a judicial review of the consul’s refusal to issue a visa. In contrast to the CJEU, which avoided the thorny issue of the extraterritorial application of Article 18 of the Charter by relying on an unconvincing teleological interpretation,31 other regional courts (IACtHR and ECtHR) have taken a clearer and broader interpretation of the extraterritorial application of the right to asylum. The IACtHR, for instance, has held that the right to asylum applies also in diplomatic representations, ‘provided that the authorities exercise their authority or effective control over such persons’.32 Guaranteeing the right to asylum required the parties to the American Convention on Human Rights to consider allowing safe passage or other measures within their power, in line with international law.33 In judgments delivered before the so-called refugee crisis the ECtHR ruled that the activities of a state’s diplomatic or consular agents abroad trigger that state’s jurisdiction under the ECHR.34 The ECtHR held that, even if states retain full control over immigration, denying an individual entry to a state may undermine the rights protected by the ECHR.35 However, the ECtHR has changed its approach in a more recent judgment, following the CJEU interpretation in X and X c Belgium.36 The ECtHR ruled out that submitting an application for a humanitarian visa to the diplomatic representation of an EU Member State in a third country could lead to an ‘extraterritorial’ application of the ECHR and thus give rise to international liability of a state under Article 3 ECHR. Both the CJEU and the ECtHR have thus recognised that, according to the current state of European law, the issuing of humanitarian visas remains a state’s prerogative. Unlike those two courts, whose

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E Brouwer, ‘AG Mengozzi’s Conclusion in X and X v Belgium on the Positive Obligation to Issue Humanitarian Visas: A Legitimate Plea to Ensure Safe Journeys for Refugees’ (2017) CEPS Policy Insight 2017/09. Inter-American Court of Human Rights (IACtHR), Advisory Opinion (AO) OC-25/18 (30 May 2018), para 188. ibid para 198; on how the right to asylum is interpreted in the Americas compared to Europe, see Andreina De Leo and Juan Ruiz Ramos, ‘Comparing the Inter-American Court opinion on diplomatic asylum applications with M.N. and Others v. Belgium before the ECtHR’ (OMNIA blog post 13 May 2020). X and Y v Switzerland App. nos 7289/75, 7349/76 (Commission Decision, 14 July 1977) 73; M v Denmark App no 17392/90 (Commission Decision, 14 October 1992); Al-Skeini and Others v UK App no 55721/07 (ECtHR, 7 July 2011). East African Asians v UK, App o 440370 (Commission Decision, 14 December 1973) paras 185–87. MN and Others v Belgium (n 19).

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legitimacy is under threat from national governments,37 some domestic courts have recognised a positive obligation on the state to issue a visa with limited territorial validity where there are well-founded humanitarian reasons grounded in constitutional rights to asylum and the prohibition of ill-treatment.38 The territorial scope of application of the Charter in migration appears to be interpreted differently depending on the right at issue (Article 18 or Article 47).39 Perhaps dialogue between the CJEU and other regional judicial bodies could lead to greater normative clarify. Given that the right to asylum is based on the Refugee Convention and that there is no international adjudicatory mechanism for refugee law, the burden of ensuring a coherent approach on the scope of application of the principle of non-refoulement falls on courts across the globe. Hence, ECtHR and IACtHR case law should have a greater influence on the CJEU’s understanding of the territorial scope of Article 18.

7.3 The Normative Components of the EU Fundamental Right to Asylum Unlike corresponding international and regional provisions recognising a right to asylum, Article 18 of the Charter does not list its normative components.40 Instead, it defines the right to asylum by reference to the Refugee Convention, which does not include an express right to asylum, and the EU Treaties. This open-ended formulation of the EU fundamental right to asylum raises the questions of the precise extent of its substantive scope and whether it confers guarantees different from the principle of non-refoulement enshrined in the Refugee Convention. Whether Article 18 includes a right to asylum in a country of one’s own choosing and a right to be granted asylum are among the more recent questions that remain open. This section aims to identify the normative scope of the EU fundamental right to asylum on the basis of an evolutionary, human rights-oriented interpretation of the principle of non-refoulement enshrined in the Refugee Convention; the provisions of the EU Treaties relating to asylum; the rights to asylum embodied in the constitutions of Member States; and the case law of the CJEU, the ECtHR and national courts. 37

38 40

See Sarantis Michalopoulos ‘Orban Attacks the European Court of Human Rights’ (Euractiv, 30 March 2017, updated 31 March 2017), www.euractiv.com/section/global-europe/news/orbanattacks-the-european-court-of-human-rights-at-epp-congress/ and the separate opinion of Judge Pinto de Alburquerque in MA and Others v Lithuania App no 59793/17 (ECtHR, 11 March 2019). 39 See Section 7.3.2. Compare X and X (n 19) with El Hassani (n 30). Such as ‘right to seek and be granted asylum’ (American Convention on Human Rights, art 22(7)); ‘right… to seek and obtain asylum’ (African Charter on Human and Peoples’ Rights, art 12(3)); ‘right to seek and to enjoy … asylum’ (Universal Declaration of Human Rights, art 14).

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7.3.1

Normative Content Deriving from the International Refugee Law Principle of Non-Refoulement

Article 18 of the Charter refers to the Refugee Convention as one of its normative sources, even if the Convention does not expressly provide for a right to asylum. Moreover, the Convention’s preamble pejoratively refers to the grant of asylum as liable to ‘place unduly heavy burdens on certain countries’, thus appearing to exclude an individual right to asylum. The Refugee Convention codifies only the principle of non-refoulement, which entails a negative duty on the part of the signatory states not to return an individual to a country where they could face persecution on any of an exhaustive list of five grounds: race, religion, nationality, membership of a particular social group or political opinion.41 The principle of non-refoulement has been interpreted as distinct from a right to asylum, as the prohibition of refoulement produces effects only within the territory of the state concerned and does not imply a right to access the territory of another country chosen as a safe destination.42 However, this cautious interpretation has been overridden in the last decade by a more inclusive view developed on the basis of international human rights law and innovative judicial decisions assessing states’ containment policies. It is thus nowadays widely accepted that the principle of non-refoulement implies an individual right to seek refugee status.43 It has been argued that, to ensure the principle’s effectiveness, states have an implied obligation to temporarily admit asylum seekers who have submitted applications in their territories or at their borders while processing their asylum claims or deciding whether another state is responsible for assessing such claims.44 The decisive criterion determining whether a person falls within the jurisdiction of a state, and thus triggers its duty temporarily to admit, is whether or not the person is subject to the effective authority and control of that state.45 To be able

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See arts 1(A)(2) and 33. UNHCR and G Madsen, ‘Commentary on the Refugee Convention 1951: Articles 2–11, 13–37’ (October 1997), www.refworld.org/docid/4785ee9d2.html; GS Goodwin-Gill and J McAdam The Refugee in International Law (OUP 2007) 208. V Chetail, International Migration Law (OUP, 2019); E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement’ in E Feller, V Turk and F Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (CUP 2003); Goodwin-Gill (n 13). See Pacheco Tineo Family v Bolivia (IACtHR, 25 November 2013) para 138; IACtHR Advisory Opinion OC-21/14, n 413; Seid Mortesa Aemei v Switzerland UN doc CAT/C/18/D/34/1995 (Committee Against Torture, 29 May 1997) para 11; Chetail (n 43) 193; Costello (n 18) 232; Goodwin-Gill and McAdam, (n 42) 384; S de Lomba, The Right to Seek Refugee Status in the European Union (Intersentia 2004) 10. See UNHCR, ‘Advisory Opinion on the Implementation of the Extraterritorial Obligations of Nonrefoulement under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007) para 35.

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effectively to exercise the right to seek refugee status, applicants need to be given (and not denied) the opportunity to lodge their asylum claims,46 and to have access to effective remedies allowing them to complain against violations of their right to asylum.47 If individuals are denied the right to seek refugee status or that right is restricted, then those falling within the scope of Article 1(A)(2) of the Refugee Convention will be unlawfully deprived of international protection.48 Thus, states that pursue policies aimed at the immediate return of unauthorised foreigners, or that give financial and technical support to third countries whose violations of international human rights and refugee obligations are well known, engage their international responsibility under the principle of non-refoulement established by the Refugee Convention.49 The more controversial question is whether the principle of non-refoulement can be interpreted as also including an implied right to be granted asylum. According to evolutionary treaty interpretation,50 for Article 33 of the Refugee Convention to be effective, it should be interpreted also in the light of recent case law and state practice, as well as recent rules of international law, such as international human rights legislation and related case law. In a landmark opinion in 2018, the IACtHR interpreted the right to asylum as including a right to receive asylum in addition to the right to seek refugee status, provided that the requirements and conditions set out in the Refugee Convention or the Cartagena Convention are met.51 In the context of the EU’s recent solidarity crisis over refugees, the UNHCR recommended that the principle of non-refoulement be interpreted as including the following rights: access to screening and examination of any refugee or asylum claims, including in situations of mixed migratory flows; due process in the determination of status; and prohibition of the use of detention to deter potential asylum seekers.52 Despite the progressive interpretation of the Refugee Convention’s principle of non-refoulement by human rights bodies, courts and quasi-judicial institutions, the majority of states do not appear to share the view that the principle includes a limited right to be granted asylum.53 This raises the crucial question of whether the

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Such opportunity should not, for example, be blocked by border externalisation and migration control effected outside a state’s territory. 48 See IACtHR AO OC-25/18 (n 32) paras 194–97. ibid para 122. Hathaway and Gammeltoft-Hansen (n 20); Goodwin-Gill (n 13). E Bjorge, The Evolutionary Interpretation of Treaties (OUP 2014); see also 1969 Vienna Convention on the Law of Treaties 1155 UNTS 331 (VCLT), art 31(1). IACtHR AO OC-25/18 (n 32). UNHCR, ‘“Refugees” and “Migrants”: Frequently Asked Questions’ (rev 30 August 2018), www .refworld.org/docid/56e81c0d4.html. As reflected in discussions during the negotiation of the UN Global Compact on Refugees, UN doc A/73/12.

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content of the EU fundamental right to asylum is limited to guarantees stemming from the Refugee Convention, or can Article 18 make it more extensive? Given that there is a separate provision in the Charter – Article 19(2) – recognising the principle of non-refoulement and that treaty interpretation rules require provisions to be interpreted in such a way as to ensure their effective application,54 it is submitted that Article 18 should be interpreted as being normatively broader than the Refugee Convention’s principle of non-refoulement.55 Additionally, the use of the expressions ‘in accordance with’ and ‘with due respect for’ suggests that the Refugee Convention’s principle of non-refoulement is a minimum standard below which the EU fundamental right cannot fall, but which allows for wider protection.

7.3.2 The EU Treaties and National Constitutions as Sources of the Normative Content for the EU Fundamental Right to Asylum In addition to referring to the Refugee Convention, Article 18 mentions the EU’s founding treaties as sources of substantive content for the right to asylum. The relevant provision in the founding treaties is Article 78 TFEU, which empowers the Union ‘to develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection’, and in conformity with the Refugee Convention. Therefore, Article 78 TFEU does not set out a list of guarantees that characterise the right to asylum. These have rather been identified and refined in two waves of EU legislation, the first in 2005, and the second in 2013.56 However, the content of the EU fundamental right to asylum cannot be established by EU secondary legislation. In the words of Advocate General Szpunar, ‘it is secondary legislation that ought to be interpreted in the light of the Treaties, and not vice versa’.57 While the CEAS instruments may show what the political consensus on the implementation of the right to asylum was at a certain moment in time, the essential core of this right has to be sought in other primary legal sources. According to Recital (5) of the Charter, the constitutional traditions of the Member States can be a possible source of inspiration for the content of Article 18. Of the twenty-seven Member States, thirteen recognise a constitutional right to asylum.58 The three Member States that have so far been most influential in

54 55 56

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See VCLT (n 50) art 31. Travaux préparatoires are a supplementary means of interpretation; see ibid art 32. For a list of the legislative instruments adopted as part of the CEAS and related reforms, see EP Fact Sheet, www.europarl.europa.eu/factsheets/en/sheet/151/asylum-policy. See Case C-202/13 McCarthy and Others EU:C:2014:345, Opinion of AG Szpunar, para 82. The constitutions of thirteen Member States include a right to asylum: Bulgaria (art 27), Croatia (art 33), Czech Republic (art 43 of the Charter of Fundamental Rights and Basic Freedoms, which is part of the constitutional order of the Czech Republic), Germany (art 16a.), France (art 53-1),

The EU Fundamental Right to Asylum

shaping EU secondary asylum law – France, Germany and Italy – also have the right to asylum written into their constitutions. However, it is difficult to deduce from these constitutional rights to asylum a common core of normative content that could inform the content of the EU right to asylum. The wording of these constitutional provisions is highly diverse, being more or less broad with regard to substance and scope.59 This diversity perhaps explains the abstract and openended formulation of the EU fundamental right to asylum, which could be an attempt to accommodate the various domestic constitutional configurations of the right. Scholars have argued that these constitutional provisions cannot be interpreted as evidence of a Member State’s endorsement of the right to asylum as a legal obligation on its part, but simply as a humanitarian endeavour.60 However, such a view is not supported by recent domestic judicial decisions referring to the constitutional right to asylum as imposing clear positive obligations on the Member State. For instance, French and Italian courts have interpreted the constitutional right to asylum as containing both an extraterritorial right to apply for asylum and a right to be granted asylum if the conditions provided by the CEAS, the Refugee Convention or domestic law are met.61 It remains to be seen whether, in the future, the CJEU will be guided by these developments in its own interpretation of the EU right to asylum.

7.3.3

CJEU Case Law on the EU Fundamental Right to Asylum: Work in Progress or Deliberate Avoidance?

It is broadly acknowledged that the CJEU has actively defended the Charter and interpreted its provisions in a progressive manner that has often improved migrants’ rights.62 However, its input on Article 18 directly has so far been minimal, either because it lacked jurisdiction or found the questions referred to it for

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Hungary (art XIV), Italy (art 10), Poland (art 56), Portugal (art 22), Romania (art 18), Slovakia (art 53), Slovenia (art 48) and Spain (art 13). See S Meili, ‘The Constitutional Right to Asylum: The Wave of the Future in International Refugee Law?’ (2018) 41 Fordham International Law Review 383, 399; H Lambert, F Messineo and P Tiedemann, ‘Comparative Perspectives of Constitutional Asylum in France, Italy and Germany: Requiescat in Pace?’ (2008) 27(3) Refugee Survey Quarterly 16. R Boed, ‘The State of the Right of Asylum in International Law’ (1994) 5 Duke Journal of Comparative and International Law 1, 8–9; Goodwin-Gill and McAdam (n 42) ch 7. See Nantes Administrative Tribunal 1407765 M et autres v Republique (16 September 2014); Tribunale Ordinario di Roma, 21 February 2019. S Iglesias Sánchez, ‘The Court and the Charter’ (2012) 49 CMLRev 1565, 1567; F Ippolito, ‘Migration and Asylum Cases before the Court of Justice of the European Union’ (2015) 17 EJML 1; S Peers, ‘Irregular Migrants: Can Humane Treatment be Balanced Against Efficient Removal?’ (2015) 17 EJML 289.

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a preliminary ruling to be irrelevant. However, substantive guidance can be found in the opinions of several advocate generals63 and in domestic case law. A first opportunity to clarify the content of Article 18 occurred prior to the entry into force of the Lisbon Treaty, in the Elgafaji case. Advocate General Maduro offered an inspirational interpretation of the EU fundamental right to asylum as one of ‘the general principles of Community law which, themselves, are the result of constitutional traditions common to the Member States and the ECHR’.64 His recognition of the constitutional status of the EU fundamental right to asylum as a common European constitutional right, which should guide the interpretation of the scope of subsidiary protection, was not endorsed by the CJEU. The latter, however, put forward a human rights-oriented interpretation of the scope of subsidiary protection based not on the EU fundamental right to asylum but on Article 3 ECHR and a teleological interpretation of Article 15(c) of the Qualification Directive.65 The CJEU’s silence could be explained by the fact that the Charter had the status of mere soft law at the time. More opportunities to clarify the content and legal force of Article 18 emerged after the entry into force of the Lisbon Treaty. National courts have requested a growing number of preliminary rulings on such questions as the direct effect of Article 18 of the Charter,66 the normative content of the right to asylum compared to the principle of non-refoulement enshrined in Article 19(2),67 and the right’s legal force within the framework of the Dublin procedure.68 While the CJEU’s rulings on Article 18 have increased in number since the entry into force of the Lisbon Treaty, the added value of the right to asylum under the Charter compared to the principle of non-refoulement or the ECtHR’s case law on Article 3 ECHR remains unclear. In NS and Others, the CJEU did not address the explicit question of whether Article 18, combined with Articles 1 and 47 of the Charter, offered wider protection than Article 3 ECHR by imposing a positive obligation on the Member States not to transfer an asylum seeker who was subject to the Dublin II Regulation.69 In that case, the systemic violation of Article 4 of the Charter was

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66 67 69

See esp AG opinions in X and X. (n 27) and Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17Ibrahim EU:C:2018:617. Case C-465/07 Elgafaji EU:C:2008:479, Opinion of AG Maduro, para 21. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9. Case C-528/11 Halaf EU:C:2013:342. 68 Case C-411/10 NS and Others EU:C:2011:865. ibid. Council Regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1.

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found sufficient to impose such a positive obligation without any need to enquire into the legal force of the EU fundamental right to asylum. In Halaf, the CJEU did not reply to the question of whether the right to asylum imposed a positive obligation on a Member State to process an asylum claim, despite not normally being required to do so under the Dublin II Regulation. As in NS. and Others, the explanation given by the Court in Halaf was Article 18’s irrelevance to the core of the preliminary question, which could have been solved more easily, and allegedly also more pertinently, solely on the basis of Article 4 of the Charter, without touching on the substance of Article 18. From the start of the so-called refugee crisis, the preliminary reference questions on the interpretation of the content and effects of Article 18 have not only increased in number but also raised far more complex and politically sensitive issues on the right to asylum. Notably, the EU fundamental right to asylum was invoked as ground for invalidating the procedure for returning Syrians from Greece to Turkey implemented on the basis of the EU-Turkey Statement.70 Both the General Court and Court of Justice dismissed the case as inadmissible without engaging in an analysis of the impact of the right to asylum on the automatic return procedures conducted under the EU-Turkey political arrangement.71 The CJEU appears typically to have been silent in cases where the right to seek asylum is invoked by individuals attempting to access the EU asylum procedure from third countries. By contrast, it has recently articulated clear opinions on Article 18 in cases where the right of asylum seekers already present in the EU to be granted asylum was at issue. In a string of cases starting in late 2018 and culminating in Ibrahim,72 the CJEU has repeatedly confirmed a limited right to be granted asylum as a normative component of the EU fundamental right to asylum.73 Furthermore, according to the judgments in Ibrahim and E.G.,74 if the person fulfils the conditions for refugee status, the Member States have a duty to prioritise refugee status over subsidiary protection. The CJEU concluded that if a Member State systematically refuses to grant refugee status to applicants for international protection who satisfy the conditions laid down in chapters II and III

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Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v Council EU:T:2017:128, EU:T:2017:129, EU:T:2017:130. NF, NG and NM v Council (n 70): Joined Cases C-208/17 P to C-210/17 P NF and Others v Council EU:C:2018:705. Case C-652/16 Ahmedbekova EU:C:2018:801; Case C-720/17 Bilali EU:C:2019:448; Ibrahim (n 9). Similar results were reached by the Court in Joined Cases C-175–179/08 Abdulla EU:C:2008:364, para 13 and Case C-542/13 M M’Bodj EU:C:2014:2452, para 29, but, unlike Ibrahim, these cases did not mention the right to asylum. See esp Ibrahim (n 9) para 100; Ahmedbekova (n 72) para 47; Bilali (n 72) para 36. Case C-662/17 EG EU:C:2018:847.

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of the Qualification Directive without an individual examination, then such treatment would be incompatible with Article 18 of the Charter.75 The Court’s approach on the right to be granted asylum could be considered progressive, bearing in mind that this guarantee does not form part of the international right to asylum.76 That said, both the CJEU and AG Wathelet construed the right to asylum only within the limits shaped by EU secondary law, and as long as it did not conflict with the EU law principle of mutual trust. After reaffirming the primacy of the mutual trust principle, the CJEU concluded that not even systematic violations of the right to asylum could rebut the principle of mutual trust, nor did they impose an obligation on other Member States to process new asylum applications submitted by those who had already been granted subsidiary protection in other Member States.77 National courts, on the other hand, have taken a different stance on the legal force of the right to asylum. For instance, the UK Upper Tribunal78 considered that an interpretation of the Dublin III Regulation79 in conformity with Article 18 of the Charter could lead to the refusal of a Dublin transfer when ‘there is a real risk that a breach of the EU fundamental right to asylum will occur’ due to deficiencies in the asylum procedure of the Member States to which the transfer was to be made.80 Strikingly, some of the most progressive judgments of the CJEU on the right to asylum have been delivered not on Article 18 but on other Charter and EU secondary legislation provisions. The Court has delivered bold and ground-breaking findings regarding the right to asylum by expanding the scope of international protection in the light of human rights,81 establishing new procedural rights for asylum seekers outside those expressly set out in EU asylum law,82 and empowering 75 77

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76 See Ibrahim (n 9) para 99. See Goodwin-Gill and McAdam (n 42). Pursuant to Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60, art 33(2). See Ibrahim (n 9) para 100. R (on the application of Hassan and Another) v Secretary of State for the Home Department IJR [2016] UKUT 00452(IAC). Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31, esp arts 3(2), 17(2). The UKUT dismissed the claims for lack of proof of deficiencies in the Maltese asylum proceedings. However, it acknowledged that Article 18 of the Charter provided an avenue for challenging transfer decisions under the Dublin III Regulation. For instance, the CJEU has interpreted the notion of ‘internal armed conflict’ more broadly than in international humanitarian law; see Case C-285/12 Diakite EU:C:2014:39. In Case C-585/16 Alheto EU:C:2018:584, the Court strengthened the international protection of Palestinians. On the enhancement of the right to be heard, see M Moraru, ‘Judicial Interaction(s) Shaping the Right to be Heard of Asylum Seekers and Irregular Migrants’ in F Casarosa and M Moraru (eds) The Practice of Judicial Interaction in the Field of Fundamental Rights: The Added Value of the Charter of Fundamental Rights of the EU (Edward Elgar forthcoming 2021).

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national courts with broader remedial powers for the purpose of upholding the right to be granted asylum when administrative authorities fail to comply with judicial guidance.83 The CJEU’s silence on Article 18 of the Charter contrasts with its clear engagement on other Charter provisions relating to asylum. For instance, Cimade and GISTI84 is an important case, not for the Court findings on Article 1885 but rather for recognising that asylum seekers subject to Dublin proceedings are entitled to the guarantees afforded by social rights.86 In Fathi,87 the CJEU expanded the scope of international protection by interpreting ‘religion’ in Article 10 of the Charter broadly as ‘covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public, as religion may be expressed in either form’, thereby lessening the burden of proof for asylum seekers. In MA and Others, applying Article 24(2) of the Charter, the CJEU prohibited the Dublin transfers of unaccompanied children, on the basis of the ‘Member State of first entry’ rule, to Member States where there was no family connection.88 Furthermore, the CJEU has recently played an important gap-filling function in relation to international refugee law by holding that the principle of non-refoulement enshrined in Article 19(2) is absolute, regardless of the conduct of the third-country national.89 The main concern here is not so much the Court’s passivity towards to interpreting Article 18 of the Charter, but rather the contrasting approach it has taken to other Charter rights. For example, the CJEU has not only consistently engaged with the interpretation of Article 19(2) of the Charter but also broadened the extent of the protection afforded by this provision.90 On the other hand, Article 18 is cited without clarifying its precise content, and at times it appears to be absorbed by Article 19.91 Given Article 18’s decade-long existence and several Grand Chamber judgments where it had the opportunity to send a consistent message on the EU fundamental right to asylum, the Court’s silence can hardly be a coincidence. Furthermore, as highlighted by Iglesias Sanchez, the absence of reference to the Charter in cases with fundamental rights implications, particularly when national courts repeatedly invite the Court to clarify the content

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See Case C-556/17 Torubarov EU:C:2019:626. Case C-179/11 Cimade and GISTI EU:C:2012:594. ibid para 42, where the Court held that the Reception Conditions Directive should be interpreted, in particular, by promoting ‘the application of Articles 1 and 18 of the Charter’. ie Member States are obliged to grant the minimum laid down in Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18 also to asylum seekers subject to Dublin transfers; see also Cimade and GISTI (n 84) para 43. 88 Case C-56/17 Fathi EU:C:2018:803. Case C-648/11 MA and Others EU:C:2013:367. 90 See Joined Cases C-391/16, 77/17 and 78/17 M and Others EU:C:2019:403. ibid. eg Case C-181/16 Gnandi EU:C:2018:465, para 53, where the CJEU considered Article 18 as an additional source for the principle of non-refoulement; see also Alheto (n 81) para 129.

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of Article 18, ‘makes the silence of the Court extremely significant and gives rise to confusion and speculation’.92 The CJEU’s passive approach to Article 18 is not merely an academic matter, but has repercussions at national level, where it has caused confusion over the nature, content and effects of the EU fundamental right to asylum. This has strengthened the perception held by several national judges that Article 18 is merely symbolic, lacking practical added value, in comparison with other Charter provisions and the Refugee Convention,93 although Article 18 can have the same multiple functions as the rest of the Charter rights.94 Therefore, the CJEU’s tendency to downplay the relevance of Article 18 compared to other Charter provisions should be reconsidered in light of the independent, self-standing and directly effective status of the EU fundamental right to asylum. The CJEU’s passivity is in marked contrast to the approach of some of its Advocates General, who have provided salient reflections on the legal nature, content and effects of Article 18 of the Charter. Advocates General have often referred to Article 18 as standard of interpretation and validity of EU asylum law. For instance, Advocate Generals Maduro and Sharpston have both recognised the constitutional nature of the EU fundamental right to asylum and its direct effect.95 In contrast to the CJEU’s convoluted wording in Gnandi, Advocate Generals Trstenjak and Wathelet held that the right to asylum is not subordinate to the principle of non-refoulement. On the contrary, the principle of non-refoulement is only one of the normative components comprising the EU fundamental right to asylum.96 Furthermore, Advocate General Trstenjak found that, in the event of ‘[t] he complete overloading of a Member State’s asylum system’, Article 18 imposes a positive obligation on other Member States to assess an asylum application, even if they are not normally responsible for it under the Dublin system.97 There could be various reasons for the CJEU’s evasive approach to the application of the EU fundamental right to asylum. For instance, the fact that Article 18 of the Charter has been raised in potentially explosive political situations,98 particularly evident in the X and X and NF cases, has led the CJEU to play a more

92 93

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See Iglesias Sánchez (n 62) 1593. Opinions expressed by national judges during seminars held by the EUI Centre for Judicial Cooperation. Namely, as a parameter for interpreting and assessing the validity of EU secondary legislation and domestic legislation implementing EU secondary legislation. Elgafaji, Opinion of AG Maduro (n 64); Case C-179/11 Cimade EU:C:2012:594, Opinion of AG Sharpston. See Case C-411/10 NS and Others EU:C:2011:611, Opinion of AG Trstenjak; Ibrahim, Opinion of AG Wathelet (n 63). See NS and Others (n 96) para 113. During the oral hearing in Case C-638/16 X and X, Member States referred to an ‘uncontrollable flood of visa applications’: see AG Opinion (n 27) paras 169–73.

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diplomatic role. By remaining silent, the Court avoided conflict with policymakers, leaving policy choices to the EU institutions actively engaged in reaching a consensus on the legislative reform of the CEAS.99 Secondly, the CJEU’s approach could be interpreted as a reflection of the Court’s general ‘efficiency reasoning’ approach, which has been said to underlie the Court’s activity.100 It is illustrated in cases such as Bozkurt,101 NS and Others and Mahdi102 where only the most pertinent legal provision was relied upon to resolve the case, without reference to other provisions and fundamental rights perceived as merely incidental to the final outcome. Indeed, it may be noted that most of the cases related to Article 18 also included claims of violations of other fundamental rights, such as those in Articles 4 and 19(2) of the Charter. Given the absolute nature of these rights, to resolve the case it was sufficient for the Court to find that just one of them had been violated.

7.3.4

ECtHR Case Law: The Standards of a De Facto Right to Asylum

Unlike other Charter provisions, Articles 18 and 19(2) do not have corresponding provisions in the ECHR. It is widely accepted, however, that the ECtHR has developed a de facto right to asylum and a principle of non-refoulement under Article 3 ECHR, as well as procedural standards for asylum cases under Articles 5 and 13 ECHR and Article 4 of Protocol 4.103 Given the rules of equivalent interpretation set out in Article 52(3) of the Charter, this case law should be considered as setting a minimum standard of protection to be afforded under Articles 18 and 19(2) of the Charter. The ECtHR has developed standards complementary to those developed by the CJEU on the right to asylum. In particular, the ECtHR has set clear standards not only in relation to the normative scope of the right to seek asylum but also in respect of its territorial reach, on which the CJEU has yet to rule. The normative content of the right to seek asylum has been developed by the ECtHR in a string of cases in which it has examined various migration containment policies practised by the Member States, such as safe third-country arrangements, interceptions and push-backs, and detention in border transit zones. For instance, in Hirsi,104 Sharifi105 and MA and Others,106 the ECtHR held that Italy’s and Lithuania’s 99

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The issue of CEAS reform has been consistently part of the European Agenda on Migration since the start of the crisis. E Sharpston, ‘Making the Court of Justice of the European Union More Productive’ (2014) 21 MJ 763. 102 Case C-308/08 Bozkurt EU:C:2010:281. Case C-146/14 Mahdi EU:C:2014:1320. Costello (n 18); Moreno-Lax (n 18); M Crock, Refugees and Rights (Routledge 2015). Hirsi Jamaa and Others v Italy App no 27765/09 (ECtHR, 23 February 2012). Sharifi and Others v Italy and Greece App no 16643/09 (ECtHR, 21 October 2014). MA and Others v Lithuania App no 59793/17 (ECtHR, 11 December 2018).

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practices of interceptions and push-back carried out in international waters and at land borders were contrary to the principle of non-refoulement, as they prevented potential asylum seekers from exercising their right to submit an asylum application and made it impossible to assess individual risk factors. In MA and Others, the Court further held that lack of knowledge of the asylum seekers’ language was not a legitimate excuse for push-backs. Consequently, the ECtHR established an obligation for states to grant access to territory and individually assess the asylum claims of third-country nationals who fell within their jurisdiction by virtue of the principle of non-refoulement affirmed in Article 3 ECHR. In short, these judgments could be interpreted as creating an implied duty for intercepting states to admit potential refugees to their territory. In addition, Member States have several positive obligations under Articles 3 and 13 ECHR when asylum seekers come within their jurisdiction. These include allowing potential asylum seekers entry and giving them access to a fair legal procedure to determine their status as asylum seekers or refugees.107 The ECtHR has also set clear procedural standards that the asylum procedure must satisfy and which could be interpreted as part of the de facto right to asylum constructed by the Court. For instance, individuals have the right to have their applications individually assessed, and national authorities must properly assess whether the asylum seekers could face risks to their life, dignity and health in the event of refoulement, and check for the risk of chain refoulement.108 In addition, the ECtHR requires states to guarantee the examination of the merits of asylum requests even when submitted late;109 access to clear and comprehensible information for foreigners about their rights; access to linguistic and cultural mediation; effective access to the competent officers, who must be adequately trained; the availability of an appeal with suspensive effect in the face of an expulsion decision, allowing the foreigner to argue that the measure exposes them to the risk of violations of Article 3 ECHR.110 Furthermore, the decision on the asylum application must not be based on abstract or insufficient reasoning.111 According to Article 52(3) of the Charter, these various guarantees developed in case law should be considered as the minimum standard of protection to be conferred under Articles 18 and 19(2) of the Charter.

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See Sharifi and Others, (n 105) paras 210–13; IM v France App no 9152/09 (ECtHR, 2 February 2012); Hirsi Jamaa (n 104); Singh v Belgium, App no 33210/11 (ECtHR, 2 October 2012); Mohammed v Austria App no 2283/12 (ECtHR, 6 June 2013); AC v Spain App no 6528/11 (ECtHR, 22 April 2014). See Tarakhel v Switzerland App no 29217/12 (ECtHR, 4 November 2014). Jabari v Turkey, ECHR 2000-VIII, paras 40, 49. Conka v Belgium App no 51564/99 (ECtHR, 5 February 2002) paras 75–83; Gebremedhin v France App no 25389/05 (ECtHR, 26 April 2007) paras 58–67. MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011) paras 286ff.

The EU Fundamental Right to Asylum

7.4 Added Value of Article 18 and Future Prospects Until recently, the fundamental right to asylum was in practice an ‘invisible’ right, overshadowed by other Charter rights. The solidarity crisis over refugees and the EU’s and the Member States’ controversial migration policy responses have drawn increasing attention to the scope and functions of the EU fundamental right to asylum. The CJEU has left open several of the controversial questions regarding the territorial and substantive scope of application of the EU fundamental right to asylum. On the other hand, the IACtHR and the ECtHR have defined the territorial scope of application of the right to asylum widely as covering applications lodged at consular and diplomatic authorities, at borders, in international transit areas, at sea, or aboard a ship or an aircraft registered in a Member States, and by persons who are by law or de facto subject to the authority and control of a Member State. Despite the lack of judicial guidance from the CJEU, it could be argued that Article 18 embodies a subjective, individual right within the meaning of Article 52(7) of the Charter originating from the constitutional traditions of the Member States. Although the direct effect of Article 18 has not been addressed by the CJEU, this chapter has shown that several domestic courts recognise such an effect. The basic normative features common to the right to asylum under international, regional and domestic law, and which should inspire the interpretation of Article 18, appear to be the following: (1) the right to apply for asylum, which entails a corresponding duty on the part of the Member State to allow those falling within its jurisdiction to enter its territory and to give them access to international protection procedures; (2) the right not to be penalised or sanctioned for irregular entry or presence, nor to be detained; (3) the right to effective access to a fair and efficient asylum procedure, which must include additional safeguards, such as a reasonable time limit in which to submit the asylum application, a personal interview with the asylum applicant before the decision on the application is taken, the opportunity to submit evidence in support of the application and dispute evidence submitted against it, a fully reasoned written decision by an independent first-instance body based on the asylum seeker’s individual situation and not just on a general evaluation of their country of origin, the right to rebut the presumption of a country’s safety with regard to the applicant, a reasonable time limit in which to appeal against the decision and the automatic suspensive effect of an appeal against the first-instance decision, a full and speedy judicial review of both the factual and the legal grounds for the first-instance decision and free legal advice and representation and, if necessary, free linguistic assistance at both first and second instance; (4) the obligation to grant international protection if the conditions for refugee status or subsidiary protection are met and to prioritise refugee status over subsidiary protection; (5) the obligation to interpret exclusion clauses

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restrictively; and (6) the obligation to provide equal access to rights, as set out in the Refugee Convention. As far as its legal effects are concerned, the EU fundamental right to asylum can be used as a yardstick for purposes of the interpretation and validity of EU secondary legislation,112 for national legislative provisions implementing EU asylum law;113 and for Member States whose constitutions provide for a right to asylum.114 In the Member States without a constitutional right to asylum, Article 18 can function as a substitute for a domestic constitutional right to asylum.115 In addition, the right to asylum can also be used to disapply national administrative decisions, as a benchmark to ensure the effectiveness of a domestic administrative asylum procedure;116 and as a reference for EU117 and domestic legislative mainstreaming.118 Surprisingly, use of Article 18 of the Charter by national courts has been less ‘ornamental’ than its use by the CJEU. Furthermore, together with the ECtHR, national courts have more closely scrutinised the EU’s and Member States’ migration containment and externalisation policies on the basis of the right to asylum. Perhaps this will encourage the CJEU to reconsider its hitherto passive approach to the EU fundamental right to asylum and to be guided in its interpretation also by domestic courts’ interpretation of the constitutional rights to asylum, thereby ensuring respect for the common constitutional traditions of the Member States under Article 6(3) TEU.119 As pointed out by Advocate General Mengozzi, the ‘Charter is to protect rights which are not theoretical or illusory, but real and effective’.120

112 113 114

115 116

117 118

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See Joined Cases C-391/16, 77/17 and 78/17M and Others (n 89). See French National Court of Asylum 15025487, 15025488 (7 January 2016). The German Federal Administrative Court uses Article 18 of the Charter as a ‘floor and ceiling’ standard for the interpretation of the German constitutional right to asylum; see BVerwG 10 C 26.10 (PKK) and BVerwG 10 C 27.10 (DHKP/C), discussed in 2019 eNACT Handbook 101, https:// cjc.eui.eu/wp-content/uploads/2020/05/eNACT_Handbook_asylum-compresso.pdf. Italian courts see Article 18 of the Charter as only a ‘floor’ standard; see eg Tribunal of Florence Case no 14046/2017; Tribunal of Genoa Case no 12716/2017. See the judgment of the Lithuanian Supreme Administrative Court in Case no 4718-858/2017. Article 18 was invoked for the purpose of forcing national administrative authorities to speed up the registration of asylum applications or Dublin proceedings; see Sofia City Administrative Court Case no 9129/2010, decision no 297 (15 January 2014); Paris Administrative Tribunal1602545/9 (22 February 2016). See FRA, Annual Activity Report 2016 (European Union Agency for Fundamental Rights 2017) 14. In a 2016 position paper, the Austrian Judges Association identified tensions between a bill in the area of asylum law and Articles 18, 19 and 47 of the Charter; see www.parlament.gv.at/ PAKT/VHG/XXV/SN/SN_00374/imfname_527167.pdf. See Luca Minniti, ‘La Costituzione italiana come limite alla regressione e spinta al rafforzamento della protezione dello straniero in Europa’ [2018] (2) Questione di Giustizia See X and X, Opinion of AG Mengozzi (n 27) para 158.

8

Effective Remedies and Defence Rights in the Field of Asylum, Migration and Borders NATHAN CAMBIEN

8.1 Introduction Fundamental rights lie at the heart of the Area of Freedom, Justice and Security (AFSJ) and are central to the correct functioning of the different rules that make up the AFSJ acquis, including those relating to asylum, migration and borders, which will be the focus of the present chapter. Crucially, importance should be attributed not solely to substantive rights, such as the right to liberty or the right to family life; procedural rights play an equally important role, as they constitute vital guarantees enabling individuals to effectively enforce their substantive rights. Without such guarantees, these rights could quickly become illusory. This chapter will first examine the fundamental right to an effective remedy laid down in Article 47 of the Charter of Fundamental Rights of the European Union (Charter). Secondly, it will discuss the fundamental right to be heard, which forms an essential part of the rights of the defence. Both rights play a crucial role in the field of asylum, migration and borders, and their gradual conceptual development, attributable to the interplay between secondary EU legislation and the case law of the Court of Justice of the European Union (CJEU), means their importance continues to grow. Finally, this chapter will address three further fundamental procedural rights, which are related to the previous two, namely the right to access to the file, the right to legal assistance and representation and the right to legal aid. The development of these further rights in the field of asylum, migration and borders is, for the moment, still in a comparatively embryonic stage.

8.2 The Right to an Effective Remedy One of the most important procedural fundamental rights is without any doubt the right to an effective remedy, enshrined in Article 47 of the Charter. This right has been a key aspect of many recent CJEU cases in the field, playing an increasingly * Many thanks to Georgina Rea for her comments and suggestions on an earlier draft. All views expressed herein are strictly personal.

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important role both in classic asylum, migration and border cases (Section 8.2.1) and in the application of the Dublin Regulation (Section 8.2.2).

8.2.1 Asylum Directives 8.2.1.1

The Right to an Effective Remedy in CJEU Case Law

The right to an effective remedy is explicitly guaranteed by a number of acts of secondary law in the field of asylum and migration, such as the Asylum Procedures Directive1 and the Return Directive.2 The precise scope of this right and the conditions to which it may be subject have recently been explored in several important CJEU judgments. An initial group of judgments deal with national courts’ powers to hear appeals against asylum application decisions. In Alheto, the Court ruled that, in accordance with Article  47 of the Charter, when hearing such an appeal, a national court must examine not only facts and points of law which were or could have been taken into account by the administrative body, but also those which arose after the relevant decision was adopted.3 Furthermore, the Court held that, in the event that the file is referred back to the administrative body with a view to ensuring an effective remedy, any new decision must be adopted within a short time frame and comply with the judicial assessment that annulled the initial decision.4 In Torubarov, the Court went one step further and held that Article 47 of the Charter requires that when a second appeal is brought against the decision of an administrative body that failed to make the modifications required by a previous judgment, the appeal court must substitute its own decision on the application for international protection.5 The Court had previously reached a similar conclusion in relation to the Return Directive.6 A second set of judgments deal with the suspensory effect of appeals against certain asylum application decisions. Importantly, the Court ruled that Article 47

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Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/60, art 46. This directive repealed and replaced Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98, art 13. Case C-585/16 Alheto EU:C:2018:584, para 118 ; see also Case C-56/17 Fathi EU:C:2018:803, paras 63–64. Alheto (n 3) para 149. Case C-556/17 Torubarov EU:C:2019:626, para 74. The Court explicitly distinguished between the situation in this case and that in Alheto (ibid para 76). Case C-146/14 PPU Mahdi EU:C:2014:1320, para 62.

Asylum, Migration and Borders: Remedies, Defence Rights

of the Charter requires a remedy automatically suspending execution of the measure authorising the applicant’s removal to be available to an asylum applicant where there are substantial grounds to believe the applicant will be exposed to a real risk of ill-treatment contrary to Articles 18 or 19(2) of the Charter. While this applies to return and removal decisions, an appeal brought solely against a decision rejecting an application for international protection does not warrant suspensive effect, since the enforcement of such a decision cannot, in itself, involve removing the asylum seeker from the Member States.7 A third question examined in the CJEU case law is whether Article 47 of the Charter requires there to be two tiers of judicial scrutiny against return and removal decisions. The Court decided that the answer should be no.8 According to the Court, national rules providing for an appeals level of jurisdiction, combined with the automatic suspensive effect of decisions on such appeals, constitute procedural rules implementing the right to an effective remedy. Although lying within the remit of Member States’ domestic legal orders, such rules must observe the principles of equivalence and effectiveness.9 Lastly, the Court has clarified what is required of the national court hearing the appeal. The second paragraph of Article 47 of the Charter provides that everyone is entitled to a hearing by an independent and impartial tribunal. Therefore, compliance with this right demands that when an administrative authority does not itself satisfy the conditions of independence and impartiality, its decisions must subsequently be subject to control by a judicial body with jurisdiction to consider all the relevant issues. The concept of independence, which is inherent in adjudication, necessarily implies that the body in question must act as a third party, distinct from the authority that adopted the contested decision.10 By way of example, the Irish Refugee Appeal Tribunal was found to satisfy these conditions.11

8.2.1.2

Critical Assessment

In its various judgments, the CJEU has significantly clarified the scope of the right to an effective remedy in asylum and migration cases. The Court’s interpretations – which will evidently have to be taken into account when the EU legislature adopts

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Case C-562/13 Abdida EU:C:2014:2453, paras 52–53; Case C-239/14 Tall EU:C:2015:824, paras 54–56; Case C-181/16 Gnandi EU:C:2018:465, paras 52–54. Case C-69/10 Samba Diouf EU:C:2011:524, para 69; Case C-181/16 Gnandi EU:C:2018:465, para 57; Case C-422/18 PPU FR EU:C:2018:784, para 36. On the suspensory effect of an appeal, see Cases C-180/17 Staatssecretaris van Veiligheid en Justitie EU:C:2018:775, para 30; Case C-175/17 Belastingdienst/Toeslagen EU:C:2018:776, para 34. Case C-403/16 El Hassani EU:C:2017:960, paras 39–40. Case C-175/11 D and A EU:C:2013:45, paras 94–105.

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its new legislative package in the field12 – ensure that any remedies provided for by national law do not remain mere aspirations, leaving the judicial protection envisaged without any practical effect. They thereby help to ensure that these remedies effectively serve to enforce or protect an asylum seeker’s rights. This objective explains, for instance, why the Court requires appeals against removal decisions to have suspensory effect: if that were not the case, asylum applicants would be unable to effectively protect their rights, as they could be sent back to a third country, where they might be exposed to inhuman treatment, before the outcome of the appeal is known.13 This also explains why the Court has ruled that a national court must have the power to substitute its own decision for the decision of an administrative body that continuously refuses to comply with its judgments, as affirmed in Torubarov. Indeed, the Court’s interpretation is a welcome guarantee to avoid what Advocate General Bobek has aptly described as a game of ‘judicial pingpong’,14 to the obvious detriment of an asylum applicant’s rights. All the same, a number of fundamental questions remain without clear answers, perhaps the most pressing of which concerns the applicability of Article 47 of the Charter. It follows from Article 51(1) of the Charter that the Charter’s provisions are addressed to the Member States only when they are implementing Union law. Accordingly, the Court has held in a wide number of cases that the Charter was not applicable in the absence of a specific obligation imposed by EU law in the Member States.15 Such a situation is governed by national law in accordance with the principle of autonomy, subject to compliance with the principles of equivalence and effectiveness. However, this does not clarify whether national rules which provide for a remedy to enforce rights conferred by EU law must comply with Article 47 of the Charter where there is no specific EU obligation to provide such a remedy. The reason for such a requirement would not be – as is sometimes argued – that the need to comply with the principle of effectiveness entails a specific need to respect Article 47 of the Charter.16 Rather, where a Member State

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For an overview, see Council, ‘Timeline: Reform of EU Asylum Procedures’, www.consilium .europa.eu/en/policies/migratory-pressures/ceas-reform/ceas-reform-timeline/, accessed 27 September 2020. See Staatssecretaris and Belastingdienst (n 8). Case C-556/17 Torubarov EU:C:2019:626, Opinion of AG Bobek, para 2. See eg Case C-198/13 Julián Hernández and Others EU:C:2014:2055, para 35; Case C-243/16 Miravitlles Ciurana and Others EU:C:2017:969, para 34; Case C-152/17 Consorzio Italian Management and Catania Multiservizi EU:C:2018:264, paras 34–35. For an example in the field of asylum policy and border checks, see Case C-23/12 Zakaria EU:C:2013:24, para 39. As AG Bobek has explained, since the entry into force of the Charter, Article 47 has been developing in a more robust manner than the principle of effectiveness as one of the dual requirements under the heading of procedural autonomy (C-89/17 Banger EU:C:2018:225, Opinion of AG Bobek, para 101). On the sometimes unclear relationship between Article 47

Asylum, Migration and Borders: Remedies, Defence Rights

provides for a remedy permitting enforcement of EU law rights, even beyond what is mandated by EU law itself, this remedy becomes part of the procedural system governing EU law rights. This conundrum is illustrated by the case law discussed above, according to which, so long as there is no requirement under EU law for a two-tier judicial system, that issue remains a matter for national law, which must observe the principles of equivalence and effectiveness. So far, so good. However, if a Member State decides to introduce a second tier, would Article 47 of the Charter become relevant? The answer should be yes according to Advocate General Sharpston, who has proposed going further than the Court’s current case law. In her opinion in DH17 she proposed that where a Member State does provide for a second-level review of detention decisions, it must ensure that, in light of the rights affirmed in Article 47 of the Charter, the guarantees set out in Article 9 of Directive 2013/3318 are respected. Accordingly, national rules providing for a second tier of adjudication would fall within the scope of Article 47 of the Charter, even without EU law specifically requiring a two-tier system of justice. Although in DH the Court did not have the opportunity to rule on this issue,19 it should in my view follow the approach suggested by Advocate General Sharpston in any future case on the subject. Indeed, there is force in the argument that, while EU law leaves it to each Member State to decide whether or not to provide for a second-level review of return and removal decisions, a national rule providing for such a mechanism falls within the scope of the applicable directive’s provisions requiring an effective remedy to be established and, accordingly, is within the scope of EU law. In this respect, one can draw a useful analogy with the CJEU’s finding that, where a Member State adopts measures in the exercise of the discretion given to it by an act of EU law, it must be regarded as implementing EU law.20

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of the Charter and the principle of effectiveness, see also S Iglesias Sánchez, ‘The Court and the Charter: The Impact of the Entry into Force of the Lisbon Treaty on the ECJ’s Approach to Fundamental Rights’ (2012) 49 CMLRev 1565, 1578–80; D Sarmiento, ‘Who’s Afraid of the Charter? The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe’ (2013) 50 CMLRev 1267, 1282–85. Case C-704/17 DH, EU:C:2019:85, Opinion of AG Sharpston, paras 74–76. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection [2013] OJ L180/96. The national court withdrew its request for a preliminary ruling, see Case C-704/17 DH EU:C:2019:247, Order of the President of the Court. See esp Joined Cases C-411/10 and C-493/10 NS EU:C:2011:865, paras 65–68. The same approach has also been adopted by the Court in other fields; see eg Case C-258/14 Florescu and Others EU:C:2017:448, para 48; Case C-406/15 Milkova EU:C:2017:198, paras 52–54. See also the discussion in Joined Cases C-609/17 and C-610/17 TSN and AKT EU:C:2019:459, Opinion of AG Bot.

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It must be stressed that the above reasoning holds true only in situations where the remedy invoked serves to protect a right guaranteed by EU law (ubi ius ibi remedium). Indeed, Article 47 of the Charter grants the right to an effective remedy upon ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated’. That condition is obviously satisfied in appeals concerning removal or return decisions adopted on the basis of the Return Directive. This conclusion is not undermined by the mere fact that Member States enjoy a margin of discretion in determining how and under what conditions a right conferred by EU law may be exercised or enjoyed. Consequently, Article 47 of the Charter applies even in areas of EU law that accord Member States such discretion, such as the grant or refusal of a Schengen visa under the Visa Code.21 The point is well illustrated by the Court’s approach in a recent judgment on EU citizenship.22

8.2.2 8.2.2.1

Dublin Procedures The Right to an Effective Remedy in CJEU Case Law

The right to an effective remedy plays an equally important role in so-called Dublin procedures. In this context, the fundamental question is whether an applicant can challenge the decision of one Member State to send them to another Member State, which will be responsible for examining their asylum application. Traditionally, the Dublin system was thought of as essentially an inter-state system, as the determination of which Member State was responsible for examining the asylum application was assumed to be ‘neutral’ for asylum applicants and therefore not open to challenge.23 Hence, the first two Dublin regulations did not provide for the possibility of challenging a transfer decision. However, the situation changed fundamentally when, in NS, the Court famously held that Article 4 of the Charter precludes Member States from transferring an asylum seeker to the responsible Member State ‘where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision’.24 In reaching its 21

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Regulation (EC) 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas [2009] OJ L243/1. See El Hassani (n 10) paras 37–42. Case C-89/17 Banger EU:C:2018:570. See also the insightful analysis of AG Bobek (n 16) esp paras 91–95. Case C-63/15 Ghezelbash EU:C:2016:186, Opinion of AG Sharpston, para 80. See also the critical discussion in S Morgades Gil, ‘The Discretion of States in the Dublin III System for Determining Responsibility for Examining Applications for Asylum: What Remains of the Sovereignty and Humanitarian Clauses after the Interpretations of the ECtHR and CJEU?’ (2015) 27 International Journal of Refugee Law 433. NS and Others (n 20) para 106.

Asylum, Migration and Borders: Remedies, Defence Rights

decision, the CJEU closely followed the ECtHR’s finding in MSS v Belgium and Greece.25 Thus, the NS judgement established an important procedural guarantee for asylum seekers based on the need to respect their fundamental rights, which they must be able to enforce before national courts. Indeed, in accordance with the ECtHR rulings on Article 13 ECHR, to which Article 47(1) of the Charter corresponds,26 remedies allowing guaranteed rights and freedoms to be enforced must be available at national level.27 This right to an effective remedy is now enshrined in Article 27(1) of the Dublin III Regulation,28 which has also codified the NS case law in the second sub-paragraph of its Article 3(2). A hotly debated question following the NS judgment was whether an applicant could invoke grounds other than the ‘systemic deficiencies’ argument in order to challenge a transfer to the Member State normally responsible under the Dublin system. In Abdullahi, a case decided on the basis of the Dublin II Regulation,29 the Court answered this question in the negative.30 However, in Ghezelbash31 and Karim,32 two judgments rendered less than three years later, the Court held that the appeal rights conferred by the Dublin III Regulation are much broader in scope than those enjoyed under its predecessor and are not restricted to the existence of ‘systemic deficiencies’.33 The Court subsequently clarified that, in accordance with Article 47 of the Charter, asylum applicants must have access to remedies that include an examination of both the correct application of the Dublin III Regulation and the legal and factual situation in the Member State to which the applicant is to be transferred.34 25

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MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011). In that case, the ECtHR had decided that the transfer of an asylum applicant to Greece, the Member State responsible within the meaning of the Dublin II Regulation, infringed Article 3 of the ECHR for two reasons: first, by exposing the applicant to the risks arising from the deficiencies in the asylum procedure in Greece, since the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities; and second, by knowingly exposing him to conditions of detention and living conditions that amounted to degrading treatment. See ‘Explanations relating to the Charter of Fundamental Rights’ [2007] OJ C303/17. See Mohammed v Austria App no 2283/12 (ECtHR, 6 June 2013), paras 69–70. Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31 (Dublin III Regulation). Council Regulation 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1 (Dublin II Regulation). Case C-394/12 Abdullahi EU:C:2013:813, para 62. 32 Case C-63/15 Ghezelbash EU:C:2016:409. Case C-155/15 Karim EU:C:2016:410. See the analysis in Ghezelbash (n 31) paras 34–61. Case C-647/16 Hassan EU:C:2018:368, para 58; Case C-201/16 Shiri EU:C:2017:805, paras 36, 37.

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Accordingly, the Court has ruled that an asylum seeker is entitled to plead the incorrect application of one of the criteria for determining responsibility laid down in chapter III of the Dublin III Regulation, such as those relating to the grant of a visa, set out in Article 12,35 or those for determining responsibility relating to the irregular crossing of a Member State border, laid down in Article 13(1).36 In the same vein, an asylum seeker may allege an infringement of the second sub-paragraph of Article 19 of the Dublin III Regulation37 – relating to the situation where an asylum seeker has left the Member State’s territory for at least three months – or the expiry of a period laid down in Article 21(1) of the Dublin III Regulation.38 Furthermore, the Court has decided that an effective and rapid remedy must be available to asylum seekers, enabling them to rely on the expiry of the six-month period defined in Article 29(1) and (2) of the Dublin III Regulation.39

8.2.2.2

Critical Assessment

Through its successive judgments, the Court has gradually expanded the scope of the right to an effective remedy in the context of Dublin procedures. In so doing, it has arguably largely resolved the tension with the ECtHR’s case law relating to Article 13 ECHR,40 albeit without explicitly referring to the latter.41 In this connection, the Court has relied on the significant differences between the Dublin II and Dublin III Regulations, as through the latter the EU legislature introduced or enhanced various rights and mechanisms guaranteeing asylum seekers’ involvement in the process of determining the responsible Member State.42 In interpreting the right to an effective remedy, the Court naturally also relied on Article 47 of the Charter.43

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36 Ghezelbash (n 31) para 61. Case C-490/16 AS EU:C:2017:585, paras 24–35. 38 Karim (n 32) paras 19–27. Case C-670/16 Mengesteab EU:C:2017:587, para 62. Case C-201/16 EU:C:2017:805 Shiri, paras 44, 46. See S Morgades Gil, ‘The Right to Benefit from an Effective Remedy Against Decisions Implying the Return of Asylum-Seekers to European Safe Countries’ (2017) 19 EJML 255. The argument is dealt with more explicitly in a number of AG opinions; see eg Ghezelbash, Opinion of AG Sharpston (n 23) para 80. Ghezelbash (n 31) para 46. See K Lenaerts, ‘Europarecht und Zuwanderung: Aktuelle Herausforderungen’ in J Iliopoulos-Strangas and others (eds), Migration – Migration – Migrations: Neue Herausforderungen für Europa, für die Staatssouveränität und für den Sozialen Rechtsstaat – New challenges for Europe, for State Sovereignty and for the Rule of Law and the Welfare State – Nouveaux Défis pour l’Europe, la souveraineté de l’État et l’État de Droit Social (Nomos/Stämpfli 2017). Recital (19) of the Dublin III Regulation, recalls that the right must be established in accordance with Article 47 of the Charter.

Asylum, Migration and Borders: Remedies, Defence Rights

This broad interpretation of the right to an effective remedy in the context of Dublin procedures is innovative and, to some extent, surprising.44 It could be argued that those provisions of the Dublin Regulation that case law admits can be invoked by asylum applicants do not confer individual rights on the applicant and therefore could be said to fall outside the scope of Article 27(1).45 For instance, Article 19(2) of the Dublin III Regulation merely states that the Member State that is normally responsible will be relieved of this responsibility in certain circumstances. It does not seem to grant asylum applicants an identifiable right to have their applications examined by another Member State. Moreover, it could be argued that this wide interpretation of Article 27(1) is likely to lead to forum shopping46 and runs counter to the objective of rapidly determining the responsible Member State,47 particularly where the requested Member State expresses willingness to take charge of the asylum seeker.48 While the Court has explicitly addressed some of these objections, it has considered them to be of lesser importance than respecting the fundamental rights laid down in the Charter, particularly in Article 47.49 As Advocate General Sharpston neatly explained in her opinion in Ghezelbash, a narrower interpretation of Article 27(1) of the Dublin III Regulation would not be in accordance with Article 47 of the Charter.50 This focus on respecting fundamental rights also lies at the heart of the Court’s finding that, even in the absence of systemic flaws within the meaning of Article 3(2) and in the absence of the incorrect application of any other provision, Article 27(1) of the Dublin III Regulation may still give rise to a right to a remedy.51 The Court has held that an asylum applicant is entitled to challenge a transfer on the basis that the transfer in itself would result in a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, on account

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See M den Heijer, ‘Remedies in the Dublin Regulation: Ghezelbash and Karim’ (2017) 54 CMLRev 859. See Dublin III Regulation, recital (19) (the right to an effective remedy is provided ‘[i]n order to guarantee effective protection of the rights of the persons concerned’). See also the analysis in D Thym, ‘Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction: Jafari, A.S., Mengesteab and Shiri’ (2018) 55 CMLRev 549, 564–66. See Dublin III Regulation, recitals (4), (5). As was the case in many of the judgments discussed; see eg the Court’s analysis in Mengesteab (n 38) paras 59–61. See eg the analysis in Ghezelbash (n 31) paras 56–59. Ghezelbash Opinion of AG Sharpston (n 23) paras 82–84. See S Imamovic and E Muir, ‘The Dublin III System: More Derogations to the Duty to Transfer Individual Asylum Seekers?’ (2017) 2 European Papers 719; K Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CMLRev 805, 832–34; V Mitsilegas, ‘Humanizing Solidarity in European Refugee Jaw: The Promise of Mutual Recognition’ (2017) 24 MJ 721.

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of the particular seriousness of the applicant’s state of health and the significant and irreversible consequences their transfer might lead to.52 Similarly, in order to challenge a transfer decision, asylum seekers may invoke substantial grounds for believing that they would suffer a risk of inhuman or degrading treatment following the asylum procedure.53 Such a case may be established where applicants are able to demonstrate the existence of circumstances so exceptional that, in the event of a transfer to the responsible Member State, they would find themselves, irrespective of their wishes and personal choices, in a situation of extreme material poverty.54 It is clear that the Court has gradually enlarged the scope of the right to an effective remedy in Dublin procedures beyond the previous status quo. At the same time, it should be emphasised that this does not restrict the Member States’ powers to lay down precise rules governing the Dublin procedures in compliance with the Dublin III Regulation.55 Rather, it highlights that these powers must be exercised with due regard to the fundamental rights of the individuals involved, as underlined in the regulation. Moreover, the Court’s case law should not be interpreted as granting asylum applicants an unqualified right to challenge any transfer decision taken within the Dublin framework. The Court has made it clear that EU law permits certain limitations on any such right. Accordingly, the Court has ruled that Article 27(1) of the Dublin III Regulation does not preclude national legislation allowing a national court hearing an action brought against a transfer decision to take into account circumstances subsequent to the transfer of the person concerned.56 Nor does that provision oblige a Member State to provide a remedy against the decision not to use the discretionary clause set out in Article 17(1) of that regulation.57 More fundamentally, the broad interpretation of Article 27(1) in relation to take charge procedures cannot be transposed to take back procedures. The Court has ruled that, in the latter case, a third-country national who has lodged an asylum application in two Member States is not, in principle, entitled to rely on the criterion set out in Article 9 of the Dublin III Regulation in an action challenging the transfer decision brought in the second Member State.58 In reaching this conclusion, the Court pointed out a number of differences between take back and take charge

52

53

54 56 57 58

Case C-578/16 PPU, CK and Others, EU:C:2017:127, paras 73–76, where the Court refers to its seminal judgment in Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Ca˘lda˘raru EU:C:2016:198, para 88. Case C-163/17 Jawo EU:C:2019:218, paras 87, 88; Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17 Ibrahim and Others EU:C:2019:219, para 87. 55 Jawo (n 53) para 95. See Ghezelbash, Opinion of AG Sharpston (n 23) para 80. Case C-360/16 Hasan EU:C:2018:35, paras 33–40. Case C-661/17 MA and Others EU:C:2019:53, paras 73–86. Joined Cases C-582/17 and C-583/17 H and R EU:C:2019:280.

Asylum, Migration and Borders: Remedies, Defence Rights

procedures, observing that any alternative interpretation of the regulation would risk encouraging third-country nationals who have submitted an application for international protection in one Member State to travel to other Member States, thereby undermining the objective of the rapid processing of their applications. It is not altogether clear why the Court did not mention respect for Article 47 of the Charter as an objective of more fundamental importance than the rapid processing of asylum applications.59 It is to be expected that the Court will address this point more explicitly in a future case.

8.3 The Right to Be Heard 8.3.1

CJEU Case Law

A second fundamental right that has played a significant role in this field is the right to be heard. That right guarantees every person the opportunity to make their views known effectively, both during an administrative procedure and before the adoption of any decision liable to adversely affect their interests.60 The purpose of that rule is, inter alia, to enable the person to correct any error or submit any information relating to his or her personal circumstances that will support their case for or against the adoption of the decision, or in favour of its having a specific content.61 Compliance with this right normally implies that an asylum seeker must be interviewed before the decision is adopted, although it may be sufficient for the person to have been able to set out their views in writing.62 The right to be heard must also be respected in appeal procedures against administrative authority decisions. The Court has clarified that, where a case involves the Asylum Procedures Directive, for the right to a remedy to be exercised effectively, the national court must be able to review the merits of the competent administrative authority’s reasons for finding that the application for international protection was unfounded or made in bad faith and that the asylum applicant must be given the opportunity to be heard in that connection.63 The right to be heard requires the authorities to pay due attention to the observations submitted by the person concerned, examining carefully and impartially

59

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62

Compare the judgment cited in n 49 and the accompanying text. This is especially so as the Advocate General came to a different conclusion on the rights enjoyed by asylum seekers in take back procedures (Joined Cases C-582/17 and C-583/17 H and R EU:C:2018:975, Opinion of AG Sharpston). See eg Case C-277/11 M EU:C:2012:744, para 87 and case law cited. See eg Cases C-166/13 Mukarubega EU:C:2014:2336, para 47; C-249/13 Boudjlida EU:C:2014:2431, para 37; C-348/16 Sacko EU:C:2017:591, para 35. 63 Case C-560/14 M EU:C:2017:101, para 38. Sacko (n 61) paras 36, 37.

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all the relevant aspects of the individual case. It is closely connected to the obligation to state sufficiently specific and concrete reasons for a decision, so as to enable the person concerned to understand the reasons for their request being refused.64 The right to be heard does not, however, imply the right to call or cross-examine witnesses.65

8.3.2

Critical Assessment

The right to be heard is another important right that has been given increasing weight by the Court in the field of asylum, migration and borders.66 While the right to a personal interview is specifically provided for by a number of EU legislative acts – such as Article 14 of the Asylum Procedures Directive and Article 5 of the Dublin III Regulation – the Court has held that observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement.67 This case law is significant, as it illustrates how that right directly derives from EU primary law as interpreted by the CJEU. However, the precise legal source of the right to be heard is not entirely clear. In a number of judgments, the Court referred to Article 41 of the Charter, which guarantees the right to good administration,68 and, more precisely, to Article 41(2)(a), which sets out the right to be heard. However, in a number of other judgments, the Court pointed out that the right to be heard in any procedure is inherent in respect for the rights of the defence, which is a general principle of EU law.69 The reason for the Court not referring to Article 41 of the Charter in these recent cases probably lies in the fact that Article 41 is not addressed to the Member States but solely to the institutions, bodies, offices and agencies of the European Union, as the Court itself has expressly pointed out.70 Although not entirely coherent on this point,71 the Court’s recent case law considering the right to be heard as deriving from a general principle appears to be correct. Indeed, if Article 41 of the Charter were interpreted as also applying to

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68 69 70 71

65 Case C-230/18 PI EU:C:2019:383, para 79. M (n 62) para 55. See Marcelle Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart 2014) ch 7; S Janssens and P Robert. ‘Le Droit d’Être Entendu en Matière d’Asile et Migration: Perspectives Belge et Européenne’ (2013) Revue du Droit des Étrangers 379. This right also plays a significant role in various other areas of EU law; see I Rabinovici, ‘The Right to be Heard in the Charter of Fundamental Rights of the European Union’ (2012) European Public Law 149. See eg Case C-349/07 Sopropé EU:C:2008:746, para 38; M (n 60) para 86; Case C-129/13 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics EU:C:2014:2041, para 32. See eg M (n 60) para 84. See eg Boudjlida (n 61) paras 34, 36; M (n 62) paras 25, 31; Sacko (n 61) para 34. See eg Mukarubega (n 61) para 44. In some cases, the Court suggests that Article 41 of the Charter is of general application and also applies to the Member States (see eg Case C-604/12 N EU:C:2014:302, paras 49–50).

Asylum, Migration and Borders: Remedies, Defence Rights

Member State authorities, such an interpretation would contradict the explicit wording of that provision. Nor could it be justified by arguing that, as a general rule, Article 51(1) of the Charter requires the Member States to apply the provisions of the Charter ‘when they are implementing Union law’, as the generality of this rule cannot logically preclude the possibility that some articles of the Charter may provide for exceptions to that rule.72 Moreover, reliance on general principles ensures that the protection of the right to be heard is in any event guaranteed, even though the general principle does not necessarily correspond exactly to the relevant Charter provision in terms of content.73 The Court has clarified that the right to be heard should be respected not only during the administrative phase of the procedure, but also during appeals against decisions of the asylum authority, even though none of the applicable EU asylum legislation explicitly affirms the right to an oral hearing before a court or tribunal. The Court derives this right directly from Articles 47 and 48 of the Charter.74 Accordingly, it is possible to distinguish the right to be heard during the administrative phase, which does not fall within the scope of Article 47 of the Charter – since that article refers to an effective remedy before a tribunal – from the right to be heard in judicial proceedings, which does come within the scope of that article.75 Respect for the right to be heard is of fundamental importance during both phases of the procedure. In fact, respecting that right only during the judicial phase could not ‘rectify’ a failure to do so during the administrative phase.76 Although by making strict observance by the Member States compulsory, the case law has significantly strengthened the fundamental right to be heard, the Court at the same time has regard to the need to ensure that asylum procedures function efficiently. For this reason, the Court has emphasised that the detailed rules aimed at ensuring that third-country nationals who stay illegally are able to exercise their right to be heard before a return decision is adopted must be assessed in the light of the objective of the effective return of those third-country nationals to their countries of origin.77 Furthermore, the Court has repeatedly made it clear that the right to be heard is not absolute and may be restricted, provided that such restrictions are consistent

72

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76 77

In the same vein, see Case C-298/16 Ispas EU:C:2017:650, Opinion of AG Bobek, para 81. For a contrary view, see Case C-18/14 CO Sociedad de Gestión y Participación and Others EU:C:2015:95, Opinion of AG Mengozzi, para 62 (fn 48). See also S Bogojevic, X Groussot and M Medzmariashvili, ‘Adequate Legal Protection and Good Administration in EU Asylum Procedures: H.N. and Beyond’ (2015) 52 CMLRev 1635, 1654–58. 74 See Ispas (n 72) paras 89–91. See eg Sacko (n 61) para 37. The distinction is made in Alheto (n 3) para 125; see also Case C-383/13 PPU G and R EU:C:2013:553, Opinion of AG Wathelet, para 46. G and R, Opinion of AG Wathelet (n 75) para 48. Case C-329/11 Achughbabian EU:C:2011:807, para 30.

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with the general interest objectives pursued by the measure in question and do not disproportionately interfere with the substance of the rights guaranteed by the measure.78 For instance, the Court has ruled that if a national court considers that it is in a position to carry out the full and ex nunc examination required under Article 46(3) of Directive 2013/3279 on the sole basis of the information in the case file, it may decide not to hear the applicant in the appeal before it.80 Lastly, the Court has ruled that an infringement of the right to be heard will result in the annulment of the decision taken at the end of the administrative procedure only if the outcome of the procedure might have been different had it not been for such irregularity.81 The precise application and strictness of this test requires further judicial clarification. Without such guidance, it would seem difficult to determine whether a different decision might have been adopted had the applicant been given a better opportunity to argue their case.82

8.4

Related Rights: Access to the File, Legal Assistance and Representation, Legal Aid

There are a number of other fundamental procedural rights relating to the right to be heard and the right to an effective remedy which are also important in the field of asylum, migration and borders, but have so far not played a significant role in the Court’s case law in the field. The following discussion will be limited to three such rights. Firstly, the right of access to the file, which is set out in Article 41(2)(b) of the Charter,83 has been described as a precondition for the effective exercise of the right to be heard.84 While this right and the conditions to which it is subject are well established in certain other fields, such as competition law, it has not been

78

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80 81

82

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84

See eg Case C-383/13 PPU, G and R EU:C:2013:533, para 33; Boudjlida (n 61) para 43; Case C-70/15 Lebek EU:C:2016:524, para 37. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/60). Sacko (n 61) para 44. See eg G and R (n 78) para 38. A similar approach has been followed in other fields; see eg Kamino (n 67) paras 79–80. For a critical discussion, see T Duijkersloot, ‘Consequences of the Violation by Administrative Authorities of the Right to Be Heard under EU Law: The Case M.G. and N.R.’ (2014) 7(1) Review of European Administrative Law 81. That provision refers to ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’. K Lenaerts and J Vanhamme, ‘Procedural Rights of Private Parties in the Community Administrative Process’ (1997) 34 CMLRev 541.

Asylum, Migration and Borders: Remedies, Defence Rights

developed to the same extent in asylum and immigration. Admittedly, a number of acts of secondary law contain provisions governing this right,85 but there is no equivalent provision in the Return Directive, for example. The Court has ruled that, prior to deciding to return an asylum applicant, an administrative authority is not obliged to disclose to the applicant the evidence on which it intends to rely, unless the applicant could not reasonably suspect what evidence might be relied on against them or would be able to respond to it only after undertaking certain checks or steps, for example, with a view to obtaining supporting documents.86 This raises the question of whether such a ruling is consistent with 41(2)(b) of the Charter, which allows exceptions to the right of access to the file only for documents covered by professional or business secrecy.87 The mere fact that an applicant will have access to the file if they bring an appeal against the decision does not appear to justify the lack of such access at the administrative stage. Indeed, as previously noted, the right to be heard, and its corollary right of access to documents, need to be respected at both the administrative and the judicial stages of the procedure.88 Secondly, there is the right to legal assistance and representation, which is explicitly laid down in the second paragraph of Article 47 of the Charter.89 Reference is also made to this right, in relation to appeals brought against decisions of administrative authorities, in Article 22 of the Asylum Procedures Directive, Article 27(5) of the Dublin Regulation and Article 13(3) of the Return Directive. The question arises as to whether there is also a right to legal assistance during the administrative procedure. In the context of the Return Directive, the Court has ruled that such a right does exist, but that its exercise must not affect the due progress of the return procedure or undermine the effective implementation of the Return Directive.90 In so ruling, the Court again struck a delicate balance between the need to guarantee the respect for procedural rights, on the one hand, and the efficient functioning of asylum procedures, on the other. Thirdly, and closely connected to the previous right, is the right to legal aid, which may take the form of free assistance by a lawyer or waiving the costs of proceedings.91 This right is laid down in Article 47, third paragraph, of the Charter,92 Article 20 of the Asylum Procedures Directive, Article 27(6) of the Dublin III Regulation and Article 13(4) of the Return Directive. It is also the subject

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88 89 90 92

86 eg Asylum Procedures Directive, art 17(5). Boudjlida (n 61) paras 55–56. A similar exception exists in the field of competition law; see Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1, art 27(2). See n 76 and accompanying text. ‘Everyone shall have the possibility of being advised, defended and represented.’ 91 Boudjlida (n 61) para 65. Case C-279/09 DEB EU:C:2010:811, para 48. ‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’

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of a specific EU directive which lays down minimum rules relating to legal aid in cross-border disputes.93 According to settled ECtHR case law, the grant of legal aid is vital where an effective remedy or access to court would otherwise be impossible.94 Without such aid, any right to an effective remedy or to legal assistance could become purely illusionary. Despite the crucial importance of legal aid in cases related to asylum, migration and borders, there have been relatively few CJEU judgments on the matter. In other areas, however, the CJEU has found that access to legal aid may not be subject to conditions that undermine the right of access to the courts,95 and this certainly applies in the field of asylum, too. Yet, the right to legal aid must be reconciled with the need to ensure that asylum procedures are conducted efficiently. This explains the inclusion in the aforementioned directives of a provision stating that Member States are not obliged to grant free legal assistance and representation where the applicant’s appeal has no tangible prospect of success. A similar rationale can be discerned in the CJEU assertion that consideration may be given, inter alia, to whether an application has a reasonable prospect of success and to the potentially frivolous nature of the claim when deciding whether or not an applicant is entitled to legal aid.96

8.5

Strengthening Procedural Rights in the Field of Asylum, Migration and Borders

Procedural rights play a crucial role in the functioning of the EU rules on asylum, migration and borders, which govern the substantive rights of third-country nationals often in highly vulnerable positions. Procedural rights, particularly the right to an effective remedy and the right to be heard, provide such individuals with fundamental guarantees to safeguard their substantive rights and ensure that the competent institutions take their particular circumstances into account.

93

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Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes [2003] OJ L 26/41. Airey v Ireland App no 6289/73 (ECtHR, 6 February 1981); for a more recent example, see Anakomba Yula v Belgium App no 45413/07 (ECtHR, 10 March 2009). DEB (n 91) para 60; Case C-156/12 GREP EU:C:2012:342, para 40. See P Oliver, ‘Case C-279/09, DEB v. Germany, Judgment of the European Court of Justice (Second Chamber) of 22 December 2010' (2011) 48 CMLRev 2023; see also G De Baere and JT Nowak, ‘The Right to “Not Prohibitively Expensive” Judicial Proceedings Under the Aarhus Convention and the ECJ as an International (Environmental) Law Court: Edwards and Pallikaropoulos’ (2016) 53 CML Rev 1727, 1737–40. DEB (n 91) para 61; Case C-260/11 Edwards and Pallikaropoulos EU:C:2013:221, para 42.

Asylum, Migration and Borders: Remedies, Defence Rights

It therefore comes as no surprise that asylum and migration, in particular, have played a leading role in developing the EU law acquis concerning the protection of procedural rights. Indeed, many of the important CJEU Grand Chamber judgments on, for instance, the right to an effective remedy concern asylum and migration. This case law has served as a catalyst for raising the standard of protection afforded to procedural rights in Member States’ legal systems. For instance, Member States have been required to significantly widen the scope of asylum applicants’ rights of appeal against decisions in Dublin and return procedures. This is a work in progress, and the precise scope of different procedural rights and the manner in which they should be balanced against objectives of general interest, such as the efficient functioning of asylum procedures, still need to be fleshed out. The interplay between the EU legislature and the CJEU will play a crucial role in this process. Indeed, just as new developments in EU legislation have spurred developments in case law, new judicial findings on procedural rights must likewise find their way into acts of EU secondary law. This point is well illustrated in the mooted Dublin IV Regulation, which may, as was the case with the Dublin III Regulation, lead to fundamental changes in CJEU case law. Interestingly, the Commission states in Article 28(4) of its proposal that ‘[t]he scope of the effective remedy laid down in paragraph 1 shall be limited to an assessment of whether Articles 3(2) in relation to the existence of a risk of inhuman or degrading treatment or Articles 10 to 13 and 18 are infringed upon’.97 Likewise, Recital (24) of the preamble to the proposal explains that the scope of the effective remedy should be limited to a risk assessment of potential infringement of the applicants’ fundamental rights concerning respect for family life, the rights of the child, or the prohibition of inhuman and degrading treatment. Hence, the proposal would have the effect of significantly narrowing the scope of the right to an effective remedy as interpreted in recent judicial decisions. While the legislator may, of course, decide to change (reduce) the rights conferred upon asylum seekers, such changes must nonetheless be consistent with primary law, including fundamental rights, of which the Court will be the ultimate guardian.98 That said, the limitations foreseen in the Commission’s proposal are clearly not in line with current interpretations of Article 47 of the Charter in the case law

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Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)’ COM (2016) 270 final. See F Maiani. ‘The Reform of the Dublin System and the Dystopia of “Sharing People”’ (2017) 24 Maastricht Journal of European and Comparative Law 622; S Capicchiano Young, ‘Dublin IV and EXCOM: Aspirational Blunders and Illusive Solidarity’ (2017) 19 EJML 370. Lenaerts ‘Europarecht und Zuwanderung’ (n 42) 236–37.

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discussed above and have rightly been criticised in this respect by, inter alia, the European Union Fundamental Rights Agency,99 Advocate General Sharpston100 and the European Parliament Committee on Civil Liberties, Justice and Home Affairs, which suggested they be removed.101 It remains to be seen how far the scope of an effective remedy will extend under the Dublin IV Regulation, once finalised. For now, however, the position expressed by the Commission in its proposal certainly appears incompatible with Article 47 of the Charter, and it is likely that it would be challenged before the CJEU.102

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‘Opinion of the European Union Agency for Fundamental Rights on the impact on children of the proposal for a revised Dublin Regulation’ COM (2016) 270 final, 9 (‘The right to an effective remedy applies any time the rights and freedoms under the Charter are violated. Restricting the possibility to appeal an administrative decision only if it violates some Charter articles but not others would not be compatible with its Article 47. Article 28(4) of the proposed recast Dublin Regulation should either be deleted or brought in line with Article 47 of the Charter.’). Case C-670/16 Mengesteab EU:C:2017:480, Opinion of AG Sharpston, para 104 (‘It is not part of the Court’s function in these proceedings to review the content of the Commission’s proposal for a “Dublin IV Regulation”. That said, I do not myself read the words “the right to an effective remedy” in that way. Those words must be construed by reference to Articles 41 and 47 of the Charter, as the Court has done in Ghezelbash and Karim.’ (fns omitted)). Committee on Civil Liberties, Justice and Home Affairs (rapporteur C Wikström), ‘Report on the proposal for a regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)’ (6 November 2017). S Peers, ‘The Orbanisation of EU Asylum Law: The Latest EU Asylum Proposals’ (EU Law Analysis, 6 May 2016), http://eulawanalysis.blogspot.com/2016/05/the-orbanisation-of-euasylum-law.html.

PART III Judicial Cooperation in Civil Matters

9

Mutual Recognition in Civil and Commercial Matters: On Certified Mutual Trust MAGDALENA LICˇ KOVÁ AND CRÍSTIAN ORÓ MARTÍNEZ

9.1 Introduction Mr Alessandro Salvoni, a lawyer based in Milan, had successfully obtained a payment order against Ms Anna Maria Fiermonte, residing in Hamburg, for an amount owed to him for legal services. Once that order had acquired the force of res judicata, Mr Salvoni requested that the competent Italian court issue a certificate, the standardised form of which is provided in the Annex to Brussels I (recast) (‘Article 53 Certificate’),1 so as to be able to enforce the order in Germany. That certificate and a copy of the relevant judgment are the only documents an applicant has to provide in the Member State of enforcement to trigger the enforcement process, as the former exequatur procedure requiring judgment creditors to first apply for a declaration of enforceability was abolished by Brussels I (recast). Upon considering Mr Salvoni’s request, and in light of its own research, the Italian court found that Germany was the focus of Mr Salvoni’s professional activity and thus qualified his relationship with Ms Fiermonte as being between a professional and a consumer. That meant that the Italian court should never have considered itself competent to hear Mr Salvoni’s claim, given that under Brussels I (recast)2 jurisdiction lay with the courts of Germany, the Member State in which Ms Fiermonte resided. In such a situation, is there anything that the court of origin can do to correct the error upon receiving an Article 53 Certificate request? Can the judge who deals with the request alert the consumer and advise her of the remedy available to her under Brussels I (recast), which would allow the order to be refused recognition in the Member State of enforcement?3 That,

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All opinions expressed in this chapter are personal to the authors. Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1. ibid art 18(2): ‘Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.’ ibid art 45: ‘1. On the application of any interested party, the recognition of a judgment shall be refused … (e) if the judgment conflicts with: (i) Sections 3, 4 or 5 of Chapter II where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant …’

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in essence, is the question that the Court recently had to answer, and it did so with a clear no.4 In other words, however frustrating a situation brought about by the incorrect application of the common rules on jurisdiction under the Brussels I (recast) might be, once a judicial decision has become res judicata, the common system of cross-border recognition and enforcement will apply. This means that the mechanisms aimed at neutralising the effects of a possibly flawed judgment can be triggered only in the Member State of enforcement, and are subject to the conditions laid down in Brussels I (recast) in that regard. Salvoni thus eloquently illustrates the nature and specific operation of the system of judicial recognition and enforcement within the Union, which is based on mutual trust in other Member States’ judicial systems,5 and from which follows a certain formalised quasi-automaticity of recognition and enforcement. This chapter begins by outlining the major phases through which that system passed prior to acquiring its current shape (Section 9.2). It then traces the developments in case law concerning the substantive (Section 9.3) and formal (Section 9.4) requirements which, albeit minimally, condition the free circulation of judgments within the Union. The chapter concludes with remarks inspired by recent developments concerning judicial independence as a fundamental prerequisite for the mutual trust upon which the functioning of judicial cooperation within the Union relies (Section 9.5).

9.2

Principle of Mutual Recognition: Political Background and Legislative Developments

In the conclusions on its Tampere meeting of 15 and 16 October 1999,6 the purpose of which was to give effect to the then recently created Area of Freedom, Security and Justice (AFSJ), the European Council laid the foundations for the future development of the principle of mutual recognition. This principle was famously defined as ‘the cornerstone of judicial co-operation in both civil and criminal matters within the Union’. As regards civil matters, the European Council called upon the Commission ‘to make a proposal for further reduction of the intermediate measures which are still required to enable the recognition and enforcement of a decision or judgement in the requested State’. It added that such

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Case C-347/18 Salvoni EU:C:2019:661 (4 September 2019). See eg Case C-433/18 Aktiva Finants EU:C:2019:1074 (19 December 2019) para 23; Case C-361/18 Weil EU:C:2019:473 (6 June 2019) para 29 and case law cited; Case C-34/17 Donnellan EU:C:2018:282 (26 April 2018) para 40; Case C-302/13 flyLAL-Lithuanian Airlines AS EU:C:2014:2319 (23 October 2014) para 45. See www.europarl.europa.eu/summits/tam_en.htm.

Mutual Recognition in Civil and Commercial Matters

decisions ‘would be automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement’,7 and suggested that this step ‘could be accompanied by the setting of minimum standards on specific aspects of civil procedural law’. Therefore, from the outset, the principle of mutual recognition was intended to eliminate exequatur, meaning the suppression of both the procedure of exequatur (‘intermediate proceedings’) and the conditions verified as part of that procedure (‘grounds for refusal of enforcement’). This could be understood as a maximalist and formalist approach, which left the objective of mutual recognition unfettered in that it was not necessarily subject to any counterweight.8 While the Hague Programme9 restated the need for further efforts in the field, this maximalist approach was subsequently toned down to some degree, particularly in the so-called Stockholm Programme, presented on 2 December 2009.10 There, the European Council stated that the process of abolishing exequatur ‘should be continued’, while at the same time noting that its abolition would ‘also be accompanied by a series of safeguards, which may be measures in respect of procedural law as well as of conflict-of-law rules’. It referred specifically to safeguards in the case of default judgments, for example, concerning the right to be heard or the service of documents. The European Council’s change of approach from a maximalist vision of the principle of mutual recognition (Tampere) to a more nuanced one (Stockholm) was also reflected at the legislative level. Prior to the Hague and Stockholm Programmes and the Tampere European Council meeting, the Treaty of Amsterdam not only effectively created the AFSJ but also endowed the EU with the competence to legislate in the field of judicial cooperation in civil matters. Accordingly, shortly after the treaty’s entry into force on 1 May 1999, the EU began to adopt legislation in this field. Although these legislative acts were based on the principle of mutual recognition, the implementation of that principle was not done in a uniform manner. The first model of mutual recognition incorporates a process for obtaining a declaration of enforceability, usually known as the exequatur procedure. Under that procedure, the grounds for refusal are to be verified by the court of enforcement,

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The European Council suggested that, as a first step, these intermediate procedures should be abolished in respect of small consumer or commercial claims and for certain judgments in the field of family litigation. This approach favouring the abolition of exequatur was already evident in Commission, ‘Towards greater efficiency in obtaining and enforcing judgments in the European Union’ (Communication, 26 November 1997) [1998] OJ C33/3, esp paras 16–21. Council, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’ [2005] OJ C53/1. Council, ‘The Stockholm Council: An Open and Secure Europe Serving and Protecting Citizens’ [2010] OJ C115/1.

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although the moment at which that verification can or must be carried out differs among the regulations that adhere to this model. The original and more traditional approach under that first model11 involves a procedure of exequatur in which the grounds for refusal of enforcement are systematically verified, including at first instance. This is the system put in place by the Brussels Convention (Articles 31 to 45, and in particular Article 34). The only EU instrument sensu stricto in which it is currently found is Brussels II bis12 (Articles 28 to 36 setting out the general enforcement regime, and in particular Article 31(2)). Still within the first model of mutual recognition, a more recent and streamlined approach13 has emerged, according to which the declaration of enforceability is conditional on a number of formalities, but these do not include an ex officio review, at first instance, of the grounds for refusing enforcement. Those grounds can be reviewed only on appeal. This approach was initially adopted in Brussels I14 (Articles 38 to 52, and in particular Articles 41 and 45(1)), and later in the regulation on maintenance15 for the recognition and enforcement of decisions given in a Member State not bound by the 2007 Hague Protocol16 (Articles 23 to 38, and in particular Articles 30 and 34(1)). The second model of mutual recognition is characterised by the removal of exequatur, or rather its removal as a specific procedure. The nuance is important, because under this model there are differences, as explained below, depending on whether the grounds for refusing enforcement can be reviewed, particularly with regard to the public policy (ordre public) of the Member State of enforcement. The first regulations that abolished exequatur as a procedure also did away (following the Tampere approach) with the possibility of reviewing the compatibility of the issuing Member State’s decision with the public policy of the Member State of enforcement. This is the case with the rules of Brussels II bis on the enforceability

11

12

13 14

15

16

Sometimes called ‘first degree of mutual recognition’; see the Council, ‘Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters’ [2001] OJ C12/1 (‘Draft programme’). Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000 [2003] OJ L338/1. Referred to as ‘second degree of mutual recognition’ in ‘Draft programme’ (n 11). Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1. Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1. Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations; see Council Decision 2009/941/EC of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations [2009] OJ L331/17.

Mutual Recognition in Civil and Commercial Matters

of judgments concerning rights of access and judgments requiring the return of a child wrongfully removed or retained in a Member State other than the Member State of his or her habitual residence (Articles 40 to 45). It is also the system adopted in the regulation on maintenance for the recognition and enforcement of decisions given in a Member State bound by the 2007 Hague Protocol (Articles 17 to 22), the regulation on the European enforcement order (Articles 5 to 11 and 20 to 23),17 the regulation on the European order for payment procedure (Articles 19 to 23),18 and the regulation on the European small claims procedure (Articles 20 to 23).19 However, that approach was subsequently abandoned in favour of a more nuanced approach, as advocated in the Stockholm Programme. Thus, regulations adopted in recent years have systematically maintained the possibility of controlling the compatibility of a foreign decision with the public policy of the Member State of enforcement. This is the case in Brussels I (recast) (Article 45), the regulation on successions (Article 40),20 the regulation on the mutual recognition of protection measures in civil matters (Article 13),21 the regulation on the European account preservation order (Article 34),22 the regulation on matrimonial property regimes (Article 37),23 the regulation on the property consequences of registered partnerships (Article 37),24 and the general recognition regime of Brussels II bis (recast) (Articles 38, 39 and 68).25

17

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19

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21

22

23

24

25

Regulation (EC) 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/15. Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure [2006] OJ L3991, as amended by Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 [2015] OJ L341/1. Regulation (EC) 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure [2007] OJ L199/1), as amended by Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 [2015] OJ L341/1. Regulation (EU) 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L201/107. Regulation (EU) 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters [2013] OJ L181/4. Regulation (EU) 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters [2014] OJ L189/59. Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L183/1. Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships [2016] OJ L183/30. Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction [2019] OJ L178/1.

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9.3

Substantive Limits on Free Circulation of Judicial Decisions

As noted above, following the move in a number of regulations to do away with the possibility of refusing the recognition or enforcement of a decision on grounds of public policy, the EU legislator systematically reinstated it. Although, as an exception to the principle of mutual recognition, public policy must be interpreted strictly,26 the possibility of invoking an infringement of public policy constitutes an important tool at the disposal of the enforcement judge. It offers a means of ensuring that the judicial decision whose enforcement is sought will not produce legal effects in the Member State of enforcement if the fundamental rights of a person concerned by the judgment have been violated. These cover the right of defence, the right to be heard,27 the right to a fair trial28 and arguably even substantive fundamental rights.29 The abolition of the public policy exception that followed the Tampere approach resulted in national courts being obliged to recognise and enforce judgments even when faced with what they considered to be a blatant violation of a fundamental right, particularly a procedural fundamental right, in the Member State of origin. The Gambazzi case provides a good illustration of that risk. In that case, a defendant was held to be in contempt of court and was excluded from proceedings brought before a court in the United Kingdom for having failed to fulfil the obligations laid down in a disclosure order. The CJEU noted that debarring a person from participating in proceedings constituted the most serious restriction possible on the rights of defence, and that such a restriction therefore had to satisfy very specific requirements so as not to constitute a manifest and disproportionate infringement of those rights.30 Although the assessment of whether those requirements had been met was to be carried out by the Italian court requested to enforce the UK judgment, the CJEU made it clear that Italian court was entitled to refuse enforcement on the basis of the public policy clause under the conditions specified

26

27 28

29

30

See Case C-386/17 Liberato EU:C:2019:24 (16 January 2019) para 55. See also Case C-414/92 Solo Kleinmotoren EU:C:1994:221 (2 June 1994) para 20; Case C-7/98 Krombach EU:C:2000:164 (28 March 2000) para 21; Case C-38/98 Renault EU:C:2000:225 (11 May 2000) para 26; Case C-157/12 Salzgitter Mannesmann Handel EU:C:2013:597 (26 September 2013) para 39. eg Krombach (n 26); Case C-394/07 Gambazzi EU:C:2009:219 (2 April 2009). eg Case C-619/10 Trade Agency EU:C:2012:531 (6 September 2012); cf, in the context of Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures [2010] OJ L84/1, Donnellan (n 5) para 40. On the violation of a substantive standard that did not reach the necessary threshold, see Case C-681/13 Diageo Brands EU:C:2015:471 (16 July 2005) paras 47–52. Gambazzi (n 27) para 33.

Mutual Recognition in Civil and Commercial Matters

in its judgment.31 In such a situation, the public policy clause is indeed the only safeguard allowing national courts to block the recognition and enforcement of a decision they deem to be in violation of fundamental rights. Consequently, maintaining the public policy clause allows the application of the principle of mutual recognition to be counterbalanced with fundamental rights considerations, while also arguably promoting actual (as opposed to purely formal or presumed) mutual trust among the courts of the Member States. Indeed, as the Court has noted, ‘[the] principle of mutual recognition is, above all, justified by mutual trust in the administration of justice in the Union’.32 Both principles are essential to the AFSJ insofar as ‘they allow an area without internal borders to be created and maintained’.33 Nevertheless, mutual trust plays a more fundamental role, as it is the principle justifying mutual recognition in the minds of national authorities and, in particular, national courts. In other words, it is the existence of the underlying mutual trust in the Member States’ respective judicial systems that makes mutual recognition and the quasi-automatic recognition and enforcement of judgments within the Union possible. At a narrower level, the same aim of fostering actual mutual trust is in principle served also by the additional and more specific grounds for refusing recognition and enforcement that are provided in the individual instruments adopted in this field. As with the public policy ground, they are framed by the fundamental limitation ruling out a review of the judgment whose enforcement is sought.34 By way of example, apart from manifest incompatibility with the public policy of the Member State of enforcement, an exhaustive list of grounds for refusal is found in Brussels I (recast), which mentions: default judgments issued without notice being properly served on the defendant;35 irreconcilability of the judgment with another judgment;36 and conflicts with jurisdictional rules concerning certain categories of defendants considered weaker parties37 or rules providing for special jurisdiction with no possibility of a review of the factual finding.38 In other words, the objective of the free and swift circulation of judicial decisions within the Union goes hand in hand with the limited safeguards at the

31

32

33 34

35 37

ibid para 48. For a national example, see French Court of Cassation, Cass civ (1) 22 October 2008, no 1004, 06-15.577, refusing the recognition of a judgment for lack of reasoning. Case C-551/15 Pula Parking EU:C:2017:193 (9 March 2017) para 50; see also Case C-484/15 Zulfikarpašic´ EU:C:2017:199 (9 March 2017) para 40. See also, in the context of judicial cooperation in criminal matters, Case C-270/17 PPU Tupikas EU:C:2017:628, para 49. Pula Parking (n 32) para 51. See eg Brussels I (recast) art 52: ‘Under no circumstances may a judgment given in a Member State be reviewed as to its substance in the Member State addressed.’ 36 ibid art 45(1)(b). ibid art 45(1)(c)–(d). ibid recital (18), which states that the weaker party should be protected by rules of jurisdiction 38 more favourable to their interests than the general rules. ibid art 45(1)(e).

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disposal of the courts of enforcement, which in turn allows the underlying mutual trust and rationale of mutual recognition to be sustainably maintained. While the public policy exception constitutes the most general safeguard, which is followed, in a less abstract way, by more specific grounds for refusal, a similar balance is sought at the level of formalities to be respected when the enforcement of a specific judicial decision is requested in concreto. At that level, the free circulation of judicial decisions is in principle made possible by a variety of standardised forms, the use of which has become an inherent part of judicial cooperation.

9.4

Formal Limits on Free Circulation of Judicial Decisions

The rules providing for the free circulation of judgments in civil and commercial matters and enhanced access to justice within the Union are designed to make the recognition and enforcement of those judgments efficient and rapid.39 Limiting the grounds on which recognition and enforcement may be refused is a substantive means of facilitating access to justice. However, the efficient and rapid circulation of a given judgment within the Union will also depend on the observance of certain formalities which, despite having been significantly limited, still have to be complied with correctly, for failing to do so will prevent the specific act of the ‘cross-border administration of justice’ from deploying its effects. To this end, the instruments of EU law contain in their annexes standardised forms whose structure remains the same regardless of the identity of the issuing Member State or the language used. The work of the courts responsible for issuing those forms has thus been significantly facilitated. That said, experience shows that a specific instance of judicial cooperation may fail merely because the court in the Member State of origin omitted to provide all the information required of it if that omission cannot reasonably be expected to be cured through subsequent communications between the courts involved.40 If we first consider the very beginning of a case’s life cycle, the objective of efficiency of judicial proceedings is enhanced by the (rather rudimentary) rules on the service of judicial and extrajudicial documents in civil and commercial matters provided in Regulation 1393/2007.41 In that context, the Court has stressed 39 40

41

Weil (n 5) para 29; Case C-139/10 Prism Investments EU:C:2011:653 (13 October 2011) para 27. On the standard of communication between the courts in the area of judicial cooperation in criminal matters, see Case C-2/19 AP (Mesures de probation) EU:C:2020:80, Opinion of AG Bobek, paras 24–36. Regulation (EC) 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) 1348/2000 [2007] OJ L324/10, 79.

Mutual Recognition in Civil and Commercial Matters

that pursuance of the objective of efficiency and speed must not undermine ‘the rights of the defence of the addressee …, in accordance with the requirements of a fair hearing, enshrined in the second paragraph of Article 47 of the Charter’.42 It was also recalled that the aspect of the addressee’s procedural rights is of ‘particular importance when considered in the broader context of other acts of judicial cooperation in civil and commercial matters’, because the failure to properly serve a document may lead to the resulting judgment not being recognised, enforced, or certified under, respectively, Brussels I (recast) and the European Enforcement Order Regulation.43 Here, the Court underlined that the protection of the addressee’s rights must be safeguarded, inter alia, by making sure that, in addition to the served document, the addressee receives the standard form set out in Annex II to Regulation 1393/2007 informing them that they are entitled not to accept it if the document in question is not drafted in or accompanied by a translation in a language that they are deemed to understand.44 Although an ‘essential formality’,45 omitting that form cannot be sanctioned by the invalidity of the service, nor cured by operation of a national law that makes such invalidity conditional on the defendant having invoked it within a certain time limit.46 In other words, the need to protect the addressee’s rights of defence does not go as far as the invalidation of the entire service; it simply follows that if the form with the information about the right to refuse a document has not been enclosed, it must be sent to the addressee. If we turn now to the very end of the life cycle of a case, the enforcement of judgments has also been facilitated largely through the system of formalised and harmonised certification. Both Brussels I and now Brussels I (recast) provide for a standardised form, whose purpose is to ‘authoritatively state that the judgment is enforceable … [b]y extracting from the judgment whose enforcement is sought the key information, and making that information easily understandable for the authorities and any interested party.’47 As such, ‘[i]t forms the basis for the implementation of the principle of direct enforcement of judgments delivered abroad’.48 While the Court has repeatedly observed that ‘the delivery of that certificate is almost automatic’,49 national courts of enforcement may sometimes be required to perform a review before doing so. The question has arisen as to what the national

42

43 44

45 47 48 49

Case C-354/15 Henderson, EU:C:2017:157 (2 March 2017) para 51; Case C-384/14 Alta Realitat EU:C:2016:316 (28 April 2016) para 49. Case C-354/15 Henderson EU:C:2016:650, Opinion of AG Bobek, para 36. As provided in art 8(1) of the same regulation. See Henderson (n 42) para 49; Alta Realitat (n 42) paras 69, 73. 46 Henderson (n 42) para 58. ibid para 67. Case C-347/18 Salvoni EU:C:2019:370, Opinion of AG Bobek, para 50. Case C-579/17 Gradbeništvo Korana EU:C:2019:162 (28 February 2019) para 37. Case C-347/18 Salvoni (n 4) para 38. On certification under Brussels I, see Weil (n 5) para 32; Trade Agency (n 28) para 41.

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court can or should do if it doubts that the issue dealt with in the judgment to which the certificate request relates falls under the notion of a ‘civil or commercial matter’. In other words, what can or should a national court do when enquiring whether the matter falls within the scope of Brussels I (recast)? Referring to the need both to ensure swift enforcement and to preserve legal certainty, the CJEU has held that the court from which the certificate is sought can undertake such verification if the court of origin did not explicitly rule on that matter.50 In practice, the vast majority of cases start as (and may even remain) purely domestic, and only at the stage of enforcement is a cross-border element introduced. Consequently, until such time as the judgment creditor applies for an Article 53 certificate, there may simply be no need to check whether or not a given matter falls within the scope of Brussels I (recast). It follows that national courts can (and perhaps should) make sure that they will not certify a judgment to which, in light of its subject matter, the simplified recognition regime provided in the relevant instrument of EU law should not be applied. That is all the more important as the list of grounds upon which recognition and enforcement may be refused does not include a mistake by the certifying court.51 It may well have been considerations such as these that led the referring court in the Salvoni case mentioned at the beginning to realise that the national judge’s mistake in assuming jurisdiction resulted in a situation that ran counter to the protection special jurisdictional rules afford to consumers, and which could deprive the defendant of an effective remedy within the meaning of Article 47 of the Charter. As already noted, the CJEU held that there is no provision allowing the court that issues the Article 53 Certificate to verify whether the jurisdictional rules have been respected. Its finding remained unaffected by the fact that the referring court had enquired into the substantive rules of EU consumer law, since the existence of particular substantive standards does not generally affect the interpretation of procedural rules. That said, it appears that the referring court was acting not on the basis of the substantive rules contained in Directive 93/13,52 but rather by reference to the obligations deriving from the ex officio powers of national judges in that context. Regardless of whether the national court’s intention to alert the consumer defendant in that case was in the end realised through its request for a preliminary ruling, the decisive consideration from the perspective of Article 47 of the Charter was that Brussels I (recast) contains its own rules on the protection of consumers and that those rules can be invoked in the Member State of enforcement.

50 52

51 Weil (n 5) para 33, concerning Brussels I. ibid para 35. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L95/29.

Mutual Recognition in Civil and Commercial Matters

No matter how technical the aspects of judicial cooperation discussed above may seem, they may significantly impact not only an individual’s right to an effective remedy enshrined in Article 47 of the Charter but also the functioning of the entire system of judicial cooperation within the Union. It is for this reason that, in our concluding remarks below, we consider the increased attention the CJEU has recently been paying to judicial independence as a foundational requirement of any system based on the rule of law and a fundamental condition for the proper operation of the various instruments of EU law that deal with judicial cooperation.

9.5 Judicial Organs and Their Independence Within the field of judicial cooperation in civil and commercial matters, the existence of mutual trust and thus the practical operation of mutual recognition are conditional on the relevant national authorities possessing certain characteristics enabling them to qualify as a court or, more generally, an authority exercising judicial functions. Indeed, when ruling on applications for the enforcement of decisions originating in other Member States, courts must be satisfied that those decisions have been adopted by an authority that satisfies some basic conditions and can be presumed to have offered, in specific proceedings, sufficient guarantees in terms of independence, impartiality and compliance with the principle of audi alteram partem.53 That being said, most regulations in the field of judicial cooperation in civil matters (starting with Brussels I (recast)) do not include general conditions to be met in that respect, although they may designate certain authorities as coming within the meaning of the term ‘court’.54 In some regulations that term is defined. This may be done in a rather brief way by reference to national law, as in Recital (27) of the regulation on the European small claims procedure, which simply states that ‘[t]he court or tribunal must include a person qualified to serve as a judge in accordance with national law’. Elsewhere, a more elaborate definition may be provided, as in Article 3(2) of the successions regulation, according to which ‘court’ means ‘any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals

53

54

Pula Parking (n 32) para 54, regarding Brussels I (recast); Zulfikarpašic´ (n 32) para 43, regarding the regulation on the European enforcement order. eg Brussels I (recast) art 3, which designates Hungarian notaries and the Swedish Enforcement Authority as ‘courts’ for the purposes of certain summary proceedings under that regulation.

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offer guarantees with regard to impartiality and the right of all parties to be heard, and provided that their decisions, under the law of the Member State in which they operate, (a) may be made the subject of an appeal to or review by a judicial authority; and (b) have a similar force and effect as a decision of a judicial authority on the same matter’. Within that context, the Court has defined the notion of ‘exercise of judicial functions’ as involving ‘the power to decide a legal dispute, irrespective of the contentious or non-contentious nature of the proceedings’, with the proviso that such power must not be entirely dependent on the will of the parties.55 Aside from the elaborate definition in the successions regulation, the general approach taken by the Court, in particular in Pula Parking and Zulfikarpašic´,56 is based on the idea that mutual recognition is above all justified because decisions are taken by a judicial authority offering sufficient guarantees in terms of independence, impartiality and respect of the right of all parties to be heard. As regards the administration of justice more generally, the Court has recently laid emphasis on the requirements that result from Article 19 TEU, ‘which gives concrete expression to the value of the rule of law stated in Article 2 TEU’,57 and that (together with Article 4(3) TEU) impose on Member State an obligation to ensure that, when operating within the fields covered by EU law, national courts meet the requirements of ‘effective judicial protection’ and provide the necessary guarantees of independence.58 The Court has defined the requirement of judicial independence as presupposing, in principle, that the body in question ‘exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraints or subordinated to any other body, and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members or to influence their decisions’.59

55 56

57

58

59

Case C-658/17 WB EU:C:2019:444, paras 55–56 (23 May 2019). With the exception of Brussels II bis, art 2(1), which defines ‘court’ as covering all Member State authorities that have jurisdiction over matters falling within the scope of the regulation, therefore including administrative authorities. See Case C-435/06 C EU:C:2007:714 (27 November 2007) para 26; Case C-435/06 C EU:C:2007:543, Opinion of AG Kokott, para 65, observing that ‘administrative decisions too may, in principle, be recognised and enforced in another Member State on the basis of the regulation’. Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117 (27 February 2018) para 32; Case C-619/18 Commission v Poland (Independence of the Supreme Court) EU:C:2019:531 (24 June 2019) para 47. Associação Sindical (n 57) paras 37, 42; Commission v Poland (Independence of the Supreme Court) (n 57) para 58; Case C-192/18 Commission v Poland (Independence of ordinary courts) EU:C:2019:924 (5 November 2019) para 106. Associação Sindical (n 57) para 44. See also Commission v Poland (Independence of the Supreme Court) (n 57) para 108.

Mutual Recognition in Civil and Commercial Matters

Accordingly, specific aspects of the area of judicial cooperation may be subject to scrutiny in exceptional circumstances where the underlying postulate of mutual trust appears to be jeopardised by alleged structural violations of certain fundamental requirements,60 which include judicial independence.61 In the area of judicial cooperation in criminal matters, the Court has adopted a two-step process to ascertain the existence of exceptional circumstances. In essence, that process consists in, first, identifying whether there is a real risk of violation of the fundamental right at issue on account of systemic or generalised deficiencies, and then assessing whether, in the particular circumstances of the case, there are substantial grounds for believing that the person concerned will indeed be exposed to that risk.62 Such ‘exceptional circumstances’ do not yet seem to have materialised in connection with any of the instruments on judicial cooperation in civil and commercial matters, whether in relation to the standard of judicial independence or the level of protection afforded to the specific procedural or substantive fundamental rights of the parties involved. It is worth noting that in this field, unlike that of cooperation in criminal matters, the absence of harmonised procedural standards or a generally worded requirement for an effective judicial remedy (as exists in the field of asylum procedure),63 logically limits the opportunities the Court has to scrutinise the specifics of a given procedure. Nevertheless, the applicability of the relevant standards developed by the CJEU in other contexts appears a priori called for here too on account of the need to safeguard the mutual trust and thus the long-term sustainability of the day-to-day functioning of judicial cooperation.

60

61

62 63

In the context of the European arrest warrant framework decision, see Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Ca˘lda˘raru EU:C:2016:198 (5 April 2016) para 82. See also Opinion 2/13, Accession of the European Union to the ECHR, EU:C:2014:2454 (18 December 2014) para 192. Case C-216/18 PPU Minister for Justice and Equality (Deficiencies in the system of justice) EU:C:2018:586 (25 July 2018). ibid esp paras 61, 68. See Case C-556/17 Torubarov EU:C:2019:626 (29 July 2019); Case C-585/16 Alheto EU:C:2018:584 (25 July 2018).

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10

The Rights of the Child and the Right to Respect for Family Life in the Revised Brussels II bis Regulation ´ VESNA LAZIC

10.1

Introduction

Although the area of private law had no or minimal significance in the 1957 Treaty on the European Economic Community (Treaty of Rome), it has finally found its place on the agenda of the EC legislator after all.1 Currently, Article 81 TFEU presents the legal basis for unifying certain aspects of international civil procedure and, more generally, those concerning private international law. Given that EU Member States have differing cultural, historical and legal traditions, family law is an area in which unification or approximation cannot easily be achieved. Consequently, substantive issues in this field of law are not subjected to harmonisation at EU level. Instead, unification is limited to private international law aspects of certain matters pertaining to family law. The legal instruments of unification are to be adopted in a special procedure where unanimity is required. The Brussels II bis Regulation,2 which was recently revised,3 is one of the most important sources in the EU legal order regulating certain private international law aspects of family law. It contains rules on jurisdiction and on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. Thereby, highly sensitive issues, such as rights of access, as well

1

2

3

The author would like to thank Ms Linda Peels for her valuable assistance in drafting the article and in carrying out a substantial part of the research on fundamental rights in the area of family law. Given the diversity amongst Member State laws, the idea of harmonising private law rules appeared desirable. The efforts to harmonise substantive and private international law rules at Community level were aimed at enhancing the process of creating a common market in which free movement of goods, services, persons and capital was to be ensured. Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) 1347/2000 [2003] OJ L338/1 (Brussels II bis Regulation or the Regulation). Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) [2019] OJ L178/1 (Brussels II bis Recast), applicable from 1 August 2022.

Rights of the Child in Brussels II Bis Recast

as the procedure in cases of child abduction, fall within its scope. Clearly, a substantive scope of application so defined is likely to implicate the notion of the best interests of the child, as well as other rights defined in the Convention on the Rights of the Child.4 In the same vein, it is likely to involve the fundamental right to respect for family life under Article 8 of the European Convention on Human Rights,5 as well as Article 7 of the Charter of Fundamental Rights of the European Union (the Charter).6 The Convention on the Rights of the Child has been highly important in guiding EU policies and actions, as illustrated by the Commission’s Agenda for the Rights of the Child.7 Additionally, the EU is bound by the principles and provisions laid down in the Convention on the Rights of the Child, since all EU Member States have ratified it. This is especially the case with matters that fall within the scope of the EU’s competence.8 CJEU case law confirms that obligations imposed on Member States by their constitutions or by their international human rights commitments should not conflict with any obligation arising from EU membership.9 The present chapter begins by providing an insight into how certain concepts of the Convention on the Rights of the Child – the definition of the child, the best interests and hearing of the child – have generally been incorporated in the recently revised Brussels II bis Regulation. It will then focus on what is termed the ‘overriding mechanism’ in child abduction cases and point out major flaws in the current regulation’s scheme, as illustrated in relevant CJEU case law. These shortcomings may affect the level of protection of the rights of the child, as well as the fundamental right to respect for family life under the ECHR. The chapter offers a critical analysis of the current regulatory scheme, particularly in the light of relevant CJEU case law. With a passing reference to the Commission’s 2016

4

5

6 7

8

Convention on the Rights of the Child 1577 UNTS 3 (1989) (Convention on the Rights of the Child). The Convention’s legal framework does not offer the possibility for entities other than states to adhere to it. Consequently, the European Union cannot become a party to it. Nevertheless, ‘the EU relies on “general principles of EU law” (written and unwritten principles drawn from the common, constitutional traditions of the Member States) to supplement and guide interpretations of the EU Treaties (Article 6 (3) TEU)’. European Union Agency for Fundamental Rights and Council of Europe, Handbook on European Law relating to the Rights of the Child (2015) 27 (FRA Handbook). Also, CJEU case law confirms that obligations imposed on Member States by their constitutions or their international human rights commitments should not conflict with any obligation arising from EU membership. See eg Case C-4/73 Nold EU:C:1974:51. ECHR art 8(1) (‘Everyone has the right to respect for his private and family life, his home and his correspondence.’). [2000] OJ C364/1. Commission, ‘An EU Agenda for the Rights of the Child’ (Communication) COM (2011) 60 final 3 (‘The standards and principles of the UNCRC must continue to guide EU policies and actions that have an impact on the rights of the child.’). 9 FRA Handbook (n 4) 27. eg Nold (n 4); FRA Handbook (n 4) 27.

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Proposal,10 it discusses how the recently revised Regulation (Brussels II bis Recast) deals with the weaknesses of the current framework, examines the appropriateness and effectiveness of the amendments and assesses whether this new version of the regulation is likely to overcome the difficulties that have been encountered in practice.

10.2

Definition of Child

In contrast to the Brussels II bis Regulation, Brussels II bis Recast does define the child11 – as any person below the age of eighteen years. This corresponds to the first part of the definition of child in Article 1 of the Convention on the Rights of the Child. According to the latter, ‘a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’. Yet in Article 2(2)(6) of the Recast there is no wording to the effect of ‘unless … majority is attained earlier’. Moreover, the explanation provided in Recital (17)12 suggests that Brussels II bis Recast applies to any person below the age of eighteen years regardless of whether they have acquired legal capacity before that age under the law applicable to their personal status. In that respect, the definition under the Recast deviates from the definition in the Convention. The age of eighteen years also conforms with the definition of child in the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. An overlap with the scope of the Hague Convention of 13 January 2000 on the International Protection of Adults is thereby avoided. The latter applies to persons from the age of eighteen onwards. However, chapter III of Brussels II bis Recast, which complements the application of the 1980 Hague Child Abduction Convention13 in relations between Member States, applies to children up to the age of sixteen years. 10

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Commission, ‘Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility, and on international child abduction (recast)’ COM (2016) 411 final. The Commission signalled several problems that had been encountered in applying the Brussels II bis Regulation. See Commission, ‘Impact Assessment accompanying the document “Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility, and on international child abduction (recast)”’ SWD (2016) 207 final. Brussels II bis Recast, art 2(2)(6). ibid recital (17) (‘The Regulation should … apply to all children up to the age of 18 years even in cases where they have acquired capacity before that age under the law governing their personal status, for example through emancipation by reason of marriage.’). Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (entry into force 1 December 1983) (1980 Hague Child Abduction Convention).

Rights of the Child in Brussels II Bis Recast

In general, a definition of the child introduced by Brussels II bis Recast may be perceived as a useful clarification.

10.3 Right of the Child to Express His/Her Views The child’s right to express his/her view or the right to be heard is affirmed in Article 24(1) of the Charter: the freely expressed views of children ‘shall be taken into consideration on matters which concern them in accordance with their age and maturity’. This reflects the Convention on the Rights of the Child, which imposes legal obligations on states to ensure that the child who is capable of forming her or his views has the right to express those views in all matters affecting him or her. In addition, those views must be given due weight, taking into consideration the age and maturity of the child.14 The ECtHR has also ruled that the right of children to be heard is inherent in Articles 6 and 8 ECHR, albeit not expressly mentioned therein.15 The hearing of the child is firmly featured in the Brussels II bis Regulation, even though it contains no express provision in that respect.16 It incorporates the right of the child to be given the opportunity to be heard ‘unless this appears inappropriate having regard to his or her age or degree of maturity’.17 This departs to some extent from the Convention, as the latter vests the right to express views in a child ‘who is capable of forming his or her own views’. No reference is thereby made to the child’s age or maturity. Only when assessing the weight that should be given to those views must the child’s age and degree of maturity be taken into account.18 The notion of the hearing of the child has given rise to difficulties in practice. In particular, it is not clear how the hearing of the child should take place:19 there are diverging rules on this issue amongst the Member States. Also, there are discrepancies in the interpretation of not hearing the child as a ground for not recognising decisions rendered in other Member States.20 14 15

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17 18

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Convention on the Rights of the Child, art 12. B Ubertazzi, ‘The Child’s Right to Be Heard in the Brussels System’ (2017) 2 European Papers 43, 50. eg recitals (19), (20). Furthermore, the failure to provide an opportunity for a child to be heard may in certain circumstances be a ground for refusing recognition and enforcement of a judgment in matters of parental responsibility under Article 23(b). Brussels II bis Regulation, art 11(2); see also arts 11(2), 23(b), 41(2)(c), 42(2)(a). Convention on the Rights of the Child, art 12(1); T Kruger, ‘Brussels IIa Recast Moving Forward’ [2017] Nederlands Internationaal Privaatrecht 462. L Carpaneto, ‘On the Recast of the Brussels II-bis Regulation Regime on Parental Responsibility: Few Proposals De Jure Condendo’ in I Queirolo, and B Heiderhoff, Party Autonomy in European Private (and) International Law (Aracne 2015) vol 1. COM (2016) 411 final (n 10) 4.

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In order to deal with the difficulties encountered in connection with the hearing of the child, the Commission suggested in its 2016 Proposal an express provision in that respect in the new Article 20.21 Although not identical in its wording, such a provision has been included in Article 21 of Brussels II bis Recast. This newly added provision is not intended to create a standard on how to hear the child, but leaves the matter to the national laws of the Member State.22 It should be noted that Article 21 of the Recast distinguishes between whether the child should be given the right to be heard and the question of what weight should be given to those views. It thereby brings the new regulatory scheme into line with Article 24 (1) of the Convention on the Rights of the Child. In contrast to the Commission’s 2016 Proposal,23 Brussels II bis Recast retains the failure to hear the child as a reason for refusing the recognition and enforcement of a decision in matters of parental responsibility. Thus, in principle, this remains a reason for refusing the recognition of a decision under Article 39(2), save in the case of the exceptions set out in Article 39(2)(a) and (b).24 Besides, the hearing of the child has been retained in the Recast as one of the conditions for issuing a certificate for the so-called privileged decisions.25 Such decisions include orders to return the child under Article 29(6) – the so-called overriding mechanism, described in Section 10.6 below. In conclusion, Brussels II bis Recast clearly enhances the relevance of the notion of the hearing of the child. It represents an

21

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ibid art 20. On the importance of the courts taking this right of the child seriously, see Committee on Legal Affairs of the European Parliament (T Zwiefka rapporteur), ‘Draft Report on the proposal for a Council regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (COM (2016) 0411 – C8-0322/2016 – 2016/0190(CNS))’. This follows from the pertinent part of recital (39) of Brussels II bis Recast. On this specific point, see Council of Bars and Law Societies of Europe (CCBE), ‘CCBE position on the proposal for a recast of the Brussels IIa Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility, and on international child abduction’ (2016) 6 (‘some common minimum standards on the hearing of the child could be established’); EP Policy Department for Citizens’ Rights and Constitutional Affairs, ‘Recasting the Brussels IIa Regulation’ (Workshop 8 November 2016) 11. Under the Proposal, there was no possibility at the enforcement stage to control whether or not the child has been given the opportunity to express his or her view. Considering the express decision not to list this ground among the reasons to oppose recognition, it would not have been appropriate to qualify the failure to hear a child as a violation of public policy under Article 38(1)(a) of the Proposal. Nevertheless, other interpretations could have been conceivable, so it could not have been excluded that the courts in the EU Member States would be inclined to qualify this omission as a violation of public policy. Anyway, it should be welcomed that this part of the Commission’s Proposal has not been adopted in Brussels II bis Recast. Exceptions relate to proceedings concerning the property of the child and the urgency of the case, according to Article 39(2)(a) and (b) of the Recast, respectively. Brussels II bis Recast, art 47(3)(b).

Rights of the Child in Brussels II Bis Recast

improvement on the Commission’s 2016 Proposal, as it specifies the relevance of the child not being heard at the enforcement stage in a clear manner. However, considering that the Recast contains no guidelines on ‘how, where and by whom’ the hearing is to take place, inconsistencies resulting from diverging rules amongst Member States will remain.

10.4 Best Interests of the Child and the Right to Respect for Family Life Article 8(1) ECHR affirms that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’. The same principle is expressed in Article 7 of the Charter. Pursuant to Article 52(3) of the Charter, the meaning and scope of the right enshrined in Article 7 are the same as those set out in Article 8 ECHR.26 The Convention on the Rights of the Child provides in its Article 3 that ‘[t]he best interests of children must be the primary concern in making decisions that may affect them’. In Article 9, the Convention determines strict procedural safeguards for decisions on parental rights and custody. Most importantly, the rights of the child are part of the Charter, expressed in Article 24. This provision incorporates the notion of the best interests of the child in paragraph 2. It requires that the child’s best interests must be a primary consideration in all actions relating to children, whether taken by public authorities or private institutions. Article 24 of the Charter is directly inspired by the provisions of the Convention on the Rights of the Child. The Brussels II bis Regulation in its current version and the Recast both build on the notion of the best interests of the child. It is an underlying principle which permeates through the whole Recast, both in recitals and in its normative parts. Thus, the reference to the ‘best interests of the child’ in Recital (19) of the Recast clearly indicates that it is to be applied in accordance with Article 24 of the Charter and in the light of the Convention on the Rights of the Child. In addition, Recital (19) clarifies that the rules on jurisdiction in matters of parental responsibility are ‘shaped in the light of the best interests of the child’. The notion of the best interests of the child is not only a standard of crucial relevance within the rules on jurisdiction, but it also presents an important point of reference within the rules

26

See also Case C-400/10 PPU McB EU:C:2010:582, para 53; K Lenaerts, ‘The Best Interests of the Child Always Come First: The Brussels II bis Regulation and the European Court of Justice’ (2013) 20 Jurisprudence 1302, 1310.

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on the recognition and enforcement of judgments.27 However, there is a lack of consistency in the way the concept of the best interests of the child is interpreted, which often leads to difficulties in its application.28 It can be concluded that respect for these fundamental rights has been fully accepted in the Brussels II bis Regulation and Brussels II bis Recast. Moreover, the revision of the Brussels II bis Regulation was initiated with the intention of strengthening the rights of the child and bringing the Regulation ‘further in line with the United Nations Convention on the Rights of the Child by linking the provisions more closely to it’.29 Even though the legislative framework of the Regulation is shaped by the concerns for the best interests of the child, some of its provisions have failed to achieve the intended results. The CJEU judgements in the Povse30 and Zarraga cases31 provide a clear illustration of the major flaws of the so-called overriding mechanism under the Regulation’s current regulatory scheme.

10.5

Overriding Mechanism in Child Abduction Cases: The Current System under Brussels II bis

The so-called overriding mechanism32 Article 11 of the Brussels II bis Regulation provides a framework that supplements and modifies the 1980 Hague Child Abduction Convention when it applies in EU Member States. The procedure on how to submit and deal with the request for the return of the child remains governed by the 1980 Hague Child Abduction Convention. In particular, the Convention

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eg Brussels II bis Regulation, art 23(a), according to which the best interests of the child is a point of reference when applying the public policy exception as a reason for refusing recognition or enforcement of the judgment. On the best interests of the child in EU legal instruments, see N Nikolina, ‘The Influence of International Law on the Issue of Co-Parenting: Emerging Trends in International and European Instruments’ (2012) 8(1) Utrecht Law Review 122. TM de Boer and R Kotting, ‘Kinderontvoering en het Belang van het Kind’ in De Krant van het Kind, Liber Amicorum Prof. Mr. Miek de Langen (Gouda Quint 1992). 30 COM (2016) 411 final (n 10) 12. Case C-211/10 PPU Povse EU:C:2010:400. Case C-491/10 PPU Aguirre Zarraga EU:C:2010:828. This section is partly based on research presented by the author in earlier publications entitled ‘Family Private International Law Issues before the European Court of Human Rights: Lessons to be Learned from Povse v Austria in Revising the Brussels IIa Regulation’ in C Paulussen and others (eds), Fundamental Rights in International and European Law: Public and Private Law Perspectives (Asser Press/Springer 2016); and ‘Legal Framework for International Child Abduction in the European Union: The Need for Changes in the Light of Povse v Austria’ in M Župan (ed), Private International Law in the Jurisprudence of European Courts: Family at Focus (Faculty of Law Osijek 2015).

Rights of the Child in Brussels II Bis Recast

fully applies to all questions not covered by the Regulation. Yet the Regulation, pursuant to its Article 60(e), takes precedence over the Convention with respect to the matters referred to in paragraphs (2)–(8) of Article 11. The latter regulates, in paragraphs (2)–(8), the application of the Convention in cases of the return of the child from one EU Member State to another EU Member State from which the child was wrongly removed. The idea is to enhance the effectiveness of the application of the Convention amongst the EU Member States. Thus, paragraphs (2)–(5) of Article 11 provide more stringent conditions than the 1980 Hague Child Abduction Convention. The result is that the courts of the EU Member States apply the Convention differently than the courts of non-EU states. It also leads to differences depending on whether the child has been abducted from a Member State or a third state. The overriding mechanism set out in paragraphs (6), (7) and (8) of Article 11 represents the most substantial alteration in the procedure for the return of the child under the Convention. The Regulation provides for a mechanism whereby the courts in the requesting Member State may nonetheless order the child to be returned after the court in the requested Member State has issued a decision not to return the child, provided that such a non-return order is based on the reason provided in Article 13(1)(b) of the Hague Child Abduction Convention (grave risk of physical or psychological harm or other intolerable situation for the child). Thus, it shifts the jurisdiction to render a final decision on the return of the child from authorities in the ‘receiving’ EU Member State (the Member State to which the child has been wrongly removed and/or in which the child is being wrongly retained) to the authorities in the ‘requesting’ Member State (the Member State of the child’s habitual residence). By contrast, under the Convention, jurisdiction lies with the courts of the former state (the state of ‘refuge’) to render a final decision regarding the return of the child. Often referred to as the second chance procedure or the overriding mechanism, this system determines in paragraph 6 of Article 11 of the Regulation how the court in a requested Member State is to proceed if it issues an order of non-return. Paragraphs 7 and 8 of Article 11 determine how the authorities in the requesting Member States are to proceed after a decision on non-return is rendered by the court in the requested Member State – the state of refuge. Article 11(8) provides that ‘[n]otwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child’. This forms the most substantial departure from the 1980 Hague Convention by shifting the jurisdiction to make the final decision on a request for a return from the courts of the requested Member

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State to those of the Member State of origin.33 The child’s right to maintain a personal relationship and direct contact on a regular basis with both parents is the fundamental right enshrined in Article 24(3) of the Charter.34 Potentially, there is a – procedural35 and/or substantive36 – collision between the ‘notwithstanding’ provision of Article 11(8) and the rights enshrined in the ECHR.37 Paragraph 8 specifies that any judgment reversing a non-return order is automatically enforceable in all EU Member States, including the receiving state in the special procedure available under section 4 of chapter III of the Regulation. The procedure under section 4 provides for an enforcement regime that requires no exequatur. Moreover, there is no possibility of opposing recognition and enforcement.38 Enforcement follows automatically once the court in the Member State of origin certifies the judgment ordering the child’s return using the form provided in Annex IV. An important condition contained in Article 42 is that the child must be given the opportunity to be heard. Additionally, the court has to take into consideration the reasons under Article 13(1)(b) of the Convention. Therefore, the court of origin has the responsibility of ensuring that these requirements have been fulfilled. There is virtually no possibility of refusing the enforcement of such orders, unless a subsequent irreconcilable judgment is rendered in the requesting Member State.39 To be clear, this is a judgment rendered in the requesting Member State and not in the Member State of enforcement.40 However, this procedural framework has been criticised for its potential impact on the protection of fundamental rights.41 Article 11(8) enables the court in the country of origin to assess the reasons for a non-return order by the court in the Member State to which the child has been wrongfully removed or in which the child is being wrongfully retained.42 The procedure in paragraphs (7)–(8) is available when a non-return order is substantiated on the basis of Article 13(1)(b) of the 1980 Hague Convention.43 The 33

34

35 37

38 41

42 43

According to the 1980 Hague Child Abduction Convention, the courts of the requested Member State are competent to decide upon requests for a return of the child. Deterrence against child abduction has been emphasised repeatedly in CJEU case law; see eg Povse (n 30) para 64; Case C-403/09 PPU Deticˇek EU:C:2009:810, para 54; see also Lazic´, ‘Family Private International Law Issues’ (n 32) 171. 36 eg ECHR art 6(1) (including the right of the child to be heard); Charter, art 24. ECHR art 8. H Muir Watt, ‘Muir Watt on Abolition of Exequatur and Human Rights’ (Conflictof laws.net, 5 October 2013), http://conflictoflaws.net/2013/muir-watt-on-povse/. 39 40 Brussels II bis Regulation, art 42(1). ibid art 47(2). Povse (n 30) para 78. M Hazelhorst, ‘The ECtHR’s Decision on Povse: Guidance for the Future of the Abolition of Exequatur for Civil Judgments in the European Union’ [2014] Nederlands Internationaal Privaatrecht 27. Case C-195/08 PPU Rinau EU:C:2008:406, para 78. See Hague Conference on Private International Law, Guide to Good Practice under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part VI Article 13(1)(b) (HCCH 2020).

Rights of the Child in Brussels II Bis Recast

second chance procedure is not available in cases where the return of the child was refused because the court found that the child has now acquired his or her habitual residence in the new Member State. The same holds true for cases where proceedings are initiated more than a year after the abduction took place and the child has settled into his or her new environment, or when the return was refused based on concerns involving fundamental rights.44 This mechanism is often criticised in the literature for undermining mutual trust, since the non-return decision of a court in a Member State may be reassessed by a court of another Member State.45 Although the mechanism was found to comply with the obligations of Article 8 ECHR by the ECtHR in Povse,46 this attempt to prioritise returns does not appear to be successful. There have been many examples where the overriding mechanism has failed to operate as intended47 and, in practice, the child is rarely returned to the state of origin under the Article 11(8) mechanism.48

10.5.1 CJEU Case Law: Povse and Zarraga The CJEU judgments in Povse and Zarraga are clear examples of the difficulties that have arisen when the provision on the overriding mechanism of the Regulation has been applied in practice. In Povse,49 the Court had to interpret Articles 11(6)–(8), 40, 42 and 47 on the enforcement of judgments. Ms Povse and Mr Alpago had lived until 2008 as an unmarried couple in Italy with their daughter, who was born in December 2006. The spouses separated in January 2008. The parents had joint custody of the child. Each parent initiated several proceedings in Italy and Austria. The father requested the Italian court to award him sole custody of the child and to issue a travel ban. The mother nonetheless left for Austria, taking her daughter with her. In Austria she in turn commenced several proceedings, including a request for the sole custody of the child.50 The various decisions rendered in Italy included a judgment of 10 July 2009 issued by the Venice Youth Court granting a return order under Article 11(8) of

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45 47

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T Kruger and L Samyn, ‘Brussels II bis: Successes and Suggested Improvements’ (2016) Journal of Private International Law 132, 158–59. 46 ibid 158. Povse v Austria App no 3890/11 (ECtHR, 18 June 2013). eg Rinau (n 42); Aguirre Zarraga (n 31); P McEleavy, ‘The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?’ (2015) 62 Netherlands International Law Review 365, 373. P Beaumont, L Walker, and J Holliday, ‘Not Heard and Not Returned: The Reality of Article 11(8) Proceedings’ [2015] International Family Law 124. Povse (n 30). For a detailed presentation of the multiple proceedings, see Lazic´, ‘Family Private International Law Issues’ (n 32) 163–66.

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the Brussels II bis Regulation. The father sought enforcement of this decision in an Austrian court, which dismissed the request on the basis of Article 13(1)(b) of the 1980 Hague Child Abduction Convention. Upon appeal, this decision was reversed and the request for enforcement of the return order granted. Thereupon, the Austrian Supreme Court requested a preliminary ruling from the CJEU. It was questioned whether Article 11(8) of the Regulation should be interpreted to mean that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision only when the basis for that order is a final judgment of the same court on the rights of custody over the child. Regrettably, the CJEU has answered that such an interpretation had no basis in the wording of Article 11(8). Instead, the Court held that this provision extended to ‘any subsequent judgment which requires the return of the child’.51 It concluded that Article 11(8) must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child can be any subsequent judgment that does not necessarily have to be preceded by a final judgment of that court relating to rights of custody over the child.52 In other words, it is not necessarily the court having jurisdiction over custody, but can be any court of the Member State from which the child was wrongly removed. On the interpretation of Articles 42(2) and 47(2) of the Regulation, the CJEU ruled that the court of enforcement had no authority to review the decision of the Italian court ordering the return of the child under Article 11(8). The enforcement of a certified judgment ordering the return of a child cannot be opposed before the court in the Member State of enforcement on the grounds that the court of the Member State of origin may have infringed Article 42 of the regulation.53 This means that, at the stage of enforcement, no objection may be raised, not even when a fundamental right or the best interests of the child are at stake. All arguments in this regard must be raised before the court in the Member State of origin and not before the court of enforcement. The CJEU judgment illustrates that the Austrian courts in the Povse case had no other option but to enforce the return order without the possibility of opposing enforcement under the Regulation. It triggers a critical assessment of the current procedural framework for child abduction cases; it raises the question of the appropriateness of a system of enforcement in which there is no possibility of controlling the decision or of refusing its enforcement in another Member State. The CJEU reaffirmed this reasoning in its Zarraga judgment.54 This case concerned the retention of a child by her mother in Germany. The father filed a

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52 53 Povse (n 30) para 52. ibid para 67. ibid para 75. Aguirre Zarraga (n 31). This case concerned the wrongful removal of a child from Spain to Germany. A Spanish father and a German mother lived in Spain with their child. They separated when their relationship deteriorated in 2007. Both parents brought proceedings in Spain,

Rights of the Child in Brussels II Bis Recast

petition in Germany for the return of his daughter to Spain on the basis of the 1980 Hague Child Abduction Convention. Additionally, he requested the enforcement of a part of the Spanish court judgment that had been certified as enforceable in accordance with Article 42 of the Brussels II bis Regulation. The German court refused the request for enforcement because the child had not been heard. One of the conditions for certifying a judgment as enforceable in the country of origin is that ‘the child was given an opportunity to be heard’. Since the child had not been heard, the certificate was issued in violation of this provision of the Regulation. On appeal, the Celle Oberlandesgericht referred the case to the CJEU for a preliminary ruling. One of the questions submitted to the Court was whether a decision certified in accordance with Article 42 must be automatically enforced, even if it manifestly violates the fundamental right of the child to be heard. The CJEU clearly confirmed that a return order issued under Article 11(8) must be enforced even if it is rendered in violation of the requirements laid down in Article 42. The Court held that the allegation of a violation of fundamental rights was not meant to prevent the free circulation of judgments under the Regulation.55 The current overriding mechanism clearly concentrates the possibility of controlling the conditions for issuing the certificate in the Member State of origin. Most problematic is the Court’s reasoning that it is not necessarily the court having jurisdiction over custody that is competent to issue a return order. If it can be any court of the Member State from which the child was wrongly removed, obviously the court having jurisdiction in a custody case can render a decision that is incompatible with the return order, which will further complicate and prolong the proceedings. In addition, the CJEU held that Article 47(2) of the Regulation provides the only reason for refusing the enforcement of an order for the return of the child certified under Article 42(2). The reason for refusing enforcement under Article 47(2) is the irreconcilability of the order for return with a subsequent enforceable judgment. The question was whether the ground concerns a decision subsequently rendered in the country of origin or in the Member State where the enforcement of the order has been requested. The CJEU emphasised the importance of attributing jurisdiction for the purposes of Article 11(8) solely to the courts in the Member State where the child had his/her habitual residence immediately before the abduction. It concluded that the reason of irreconcilability may be raised if

55

with each of them seeking sole custody of the child. The Bilbao court rendered its judgment provisionally, awarding rights of custody to the father, while the mother was granted rights of access. The child was not heard in these proceedings. The mother moved to Germany in 2008. The daughter spent holiday periods with her mother in Germany and finally remained there with her. ibid para 75.

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there is a subsequent judgment rendered in the Member State where the return order was issued.56

10.5.2 The Povse Case before the ECtHR After the CJEU had issued its ruling in Povse, the mother and daughter filed a complaint before the ECtHR. The applicants alleged that the Austrian court had violated the right to respect for family life by ordering the enforcement of the Italian return order without examining whether the child’s return to Italy would present a serious threat to her well-being. They argued that such an order for return would in effect permanently separate mother and daughter, and would consequently result in a violation of Article 8 ECHR. In its assessment of this case, the ECtHR analysed whether there was interference with the right to respect for family life and, if so, whether this interference was in accordance with the law, had a legitimate aim and was necessary.57 In addressing this last question, the ECtHR applied the Bosphorus test.58 It then concluded that the presumption of compliance applied, since the EU protected fundamental rights to an equivalent degree. Accordingly, the protection of fundamental rights afforded by the EU was in principle equivalent to that of the ECHR system.59 In requesting a preliminary ruling from the CJEU, the Austrian Supreme Court had complied with these standards, as it made use of the most important EU review mechanism.60 Referring to one of its earlier decisions in Kampanella v Italy,61 the ECtHR first reasoned that the EU adequately protects fundamental rights, so there is the presumption of compliance as determined in Michaud v. France.62 It continued by reasoning that the Brussels II bis Regulation protects fundamental rights, and that

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57 Povse (n 30) para 78. Povse v Austria (n 46) 20, 21. Bosphorus Airways v Ireland App no 45036/98 (ECtHR, 30 June 2005). The Court applied what is referred to as the Bosphorus test, which is designed to establish whether, in a case where a state claims to have simply fulfilled its obligations resulting from its membership of an international organisation (such as the EU), it may be exempt from responsibility under the ECHR because the relevant organisation adequately protects fundamental rights. The rationale behind allowing a state to rely on a presumption of equivalent protection is to find a compromise between two conflicting objectives: on the one hand, the Member States’ freedom to transfer sovereign power to international organisations and, on the other, the need to protect fundamental rights. 60 Povse v Austria (n 46) para 77. ibid paras 80–81. Sneersone and Kampanella v Italy App no 14737/09 (ECtHR, 12 July 2011). Michaud v France App no 12323/11 (ECtHR 6 March 2013). The ECtHR held that there was a presumption of compliance where a state had transferred a part of its sovereignty to an international organisation. That state will be in compliance with obligations under the ECHR if the relevant organisation protects fundamental rights in a manner ‘that can be considered at least equivalent – that is to say not identical but “comparable” to that for which the Convention provides’ (ibid para 103).

Rights of the Child in Brussels II Bis Recast

the Austrian Supreme Court had used the most important controlling mechanism provided in the EU by submitting the interpretation to the CJEU. The ECtHR stated that the Austrian court had no discretion in granting enforcement. It held that any objection should have been raised before the court of the Member State of origin – that is, before the Italian court that had rendered the decision on the return of the child. The ECtHR concluded that the fact that the Austrian court was left with no discretion was in principle in accordance with the ECHR, provided that certain conditions were fulfilled.63 In an earlier publication, the present author has already expressed criticism regarding the legislative framework concerning orders for the return of the child under the Brussels II bis Regulation.64 The framework was intended to enhance the effectiveness of the 1980 Hague Child Abduction Convention and of return orders, with the ultimate purpose of adequately protecting the right of the child to maintain ties with both of his/her parents. In practice, however, complicated legal scenarios have led to protracted litigation and multiple lawsuits, causing uncertainty and distress detrimental to the protection of fundamental rights. Most importantly, the procedural setting obviously does not necessarily ensure proper protection of the best interests of the child. In addition, the dual system or distinct ways of applying the 1980 Hague Convention further complicates the system of regulating international child abduction cases. The twofold system of application − one amongst EU Member States and the other for third states – as illustrated by the ECtHR judgments,65 may create an appearance of inconsistency in the administration of justice.

10.6 The Overriding Mechanism in Brussels II bis Recast In June 2016, the European Commission published its Proposal to revise the Brussels II bis Regulation with a view to improving its functioning and the efficiency of its application. Strengthening the rights of the child established in Article 24 of the Charter and, more generally, better protecting fundamental rights were amongst the incentives for the legislative changes. The provisions on parental responsibility were substantially revised, but the overriding mechanism in child abduction cases has regrettably been retained in Brussels II bis Recast.

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64 Hazelhorst (n 41) 33. Lazic´, ‘Family Private International Law Issues’ (n 32) 181–82. eg X v Latvia App no 27853/09 (ECtHR, 26 November 2013). In circumstances comparable to those in the Povse case, the ECtHR reasoned that the return order was not to be issued if the best interests of the child were at stake. This case did not involve the Brussels II bis Regulation, however, so the procedure was governed solely by the 1980 Hague Child Abduction Convention.

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This section confines itself to a number of amendments that have a bearing on the overriding mechanism. Rather than reviewing all amendments, it highlights those that improve or substantially alter the current procedural framework of the Regulation.

10.6.1 Amendments Aimed at Enhancing the Efficiency of Proceedings for the Return of the Child and the Protection of the Child from ‘Grave Risks’ As was suggested in the Commission’s 2016 Proposal, Brussels II bis Recast introduces a new chapter III entitled ‘International Child Abduction’ comprising Articles 22–29. Firstly, the time limit for issuing an enforceable return order has been clarified. The current time limit of six weeks within which to issue a return order has raised uncertainties in practice. This is because it remains questionable whether or not the time limit includes appellate proceedings and even the enforcement procedure.66 Therefore, the deadline is often not met in practice.67 In the Recast, a separate six-week time limit for rendering a decision has been added for both the first instance proceedings (Article 24(2)) and for the appellate procedure (Article 24(3)), except where complying with the deadline is impossible due to exceptional circumstances. Also, the requested Central Authorities are required to act expeditiously, but, contrary to the 2016 Proposal, the Recast does not provide a time limit in Article 23.68 Obviously, these amendments represent improvements to the current procedural framework. A similar requirement to act expeditiously in processing applications for the enforcement of a decision ordering the return of a child is laid down in Article 28(1), and Article 28(2) sets a time limit of six weeks for the enforcement of such orders. Another development can be found in Article 25, which introduces the possibility of using mediation in proceedings relating to the return of a child. Also, Article 27(6) contains an important improvement by making it possible for the court ordering the return of the child to declare its decision provisionally enforceable notwithstanding any appeal if this in the best interests of the child. Article 26 clearly states that the right of the child to express his or her views as

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67 COM (2016) 411 final (n 10) 3. Rinau (n 42) para 76. The six-week time limit for the Central Authorities suggested in the Commission’s 2016 Proposal is omitted from the text of Article 23 of Brussels II bis Recast. According to the Explanatory Memorandum, amendments suggested in the Proposal would result in a new ‘6+6+6-week’ deadline, which would be a significant improvement compared to the current average of 165 days. COM (2016) 411 final 13, referencing N Lowe, ‘Statistical Analysis of Applications Made in 2008 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part II – Regional Report’ (November 2011) 10–12, https://assets.hcch.net/upload/ wop/abduct2011pd08be.pdf.

Rights of the Child in Brussels II Bis Recast

defined in Article 21 is fully applicable in the procedure for the return of the child. The Commission proposal to expressly regulate a concentration of local jurisdiction in Article 22 of the Proposal has not been followed. Yet this idea is expressed in Recital (41) of the Recast. Furthermore, the Recast authorises the court of the Member State of refuge to order urgent protective measures in cases where the child might be exposed to a grave risk as per Article 13(1)(b) of the 1980 Hague Child Abduction Convention, ‘provided that the examining and taking of such measures would not unduly delay the return proceedings’.69 This is indeed an important and useful addition to the procedural framework: the court in the requested Member State may not only enquire into the measures that the court competent to decide on custody may have taken, but is also permitted to take provisional measures itself. Most importantly, such decisions are enforceable under chapter IV of the Regulation – that is, they qualify as a ‘decision’ for the purposes of enforcement.70 Accordingly, protective measures ‘follow’ the child into other jurisdictions: their international enforceability under Article 2(1)(b) ensures their effectiveness in other Member States. This amendment certainly appears to be in the best interests of the child, as it offers an effective tool to protect the child from grave risks under Article 13(1)(b) of the Child Abduction Convention.

10.6.2 Amendments Substantially Altering the Overriding Mechanism Brussels II bis Recast introduces a number of changes that are aimed at reducing or overcoming the shortcomings that emerged in practice, as described in Section 10.5. Most importantly, Article 29(6) clearly provides that a decision ordering the return of the child must be made together with the decision on the question of custody.71 Thereby, the relevant part of the CJEU ruling in Povse is reversed, as rightly suggested in the Commission’s 2016 Proposal. Consequently, a summary order issued in one Member State cannot be overridden by one issued in another Member State.72 The possibility of the same summary analysis being carried out in two jurisdictions, which followed from the CJEU’s reasoning in Povse, undermines mutual trust,73 as well as the notion of the best interests of the child in return

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70 Brussels II bis Recast, art 27(5). As defined in Brussels II bis Recast, art 2(1)(b). The new Article 29(6) provides that ‘any decision on the substance of rights of custody … which entails the return of the child shall be enforceable in another Member State’ (emphasis added). P Beaumont, L Walker and J Holliday, ‘Parental Responsibility and International Child Abduction in the Proposed Recast of Brussels IIa Regulation and the Effect of Brexit on Future Child Abduction Proceedings’ [2016] International Family Law 307, 311. P Beaumont, L Walker and J Holliday, ‘Conflicts of EU Courts on Child Abduction: The Reality of Article 11(6)–(8) Proceedings across the EU’ (2016) 12 Journal of Private International Law 211, 225–27.

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proceedings. Thus, the amendment is in this respect a significant improvement on the overriding mechanism under the current Regulation. One of the most far-reaching amendments is the removal of the exequatur requirement for all decisions on matters of parental responsibility: no declaration of enforceability is required in the Member State of enforcement. However, the grounds on which enforcement may be refused remain largely unchanged. Decisions on rights of access and return orders rendered in second chance proceedings continue to receive special treatment under Brussels II bis Recast (in section 2 of chapter IV), albeit somewhat differently than under the Regulation’s current scheme.74 The Recast introduces changes that are substantial for the enforcement of return orders within the overriding mechanism, but it is outside the scope of this contribution to generally discuss provisions on enforcement in greater detail. Brussels II bis Recast also adjusts the provision relating to the grounds for refusing the enforcement of privileged decisions under Article 47(2) of the current Brussels II bis Regulation. According to the latter, a subsequent irreconcilable decision is the only ground on which enforcement of the return order may be refused. As explained in Section 10.5.1, in Povse the CJEU held that only an irreconcilable subsequent judgment rendered in the country of origin qualified as a ground for refusing enforcement of a return order within the meaning of Article 47(2) of the regulation.75 Article 50 of the Recast expressly reverses this ruling. It specifies that the only ground for refusal is the irreconcilability of the decision ‘which was given … in the Member State in which recognition is invoked’, or which was given in another state or in the non-Member State that fulfils the conditions for recognition in the Member State of enforcement.76 This provision is clearer than the current Article 47(2) of the Regulation and overrules the relevant part of the ruling in the CJEU Povse judgement. Both of the above-mentioned alterations are intended to mitigate the negative consequences of the overriding mechanism under the Regulation that are encountered in practice. A further limitation on the effects of the second chance procedure follows from Article 56 of the Recast relating to the suspension and refusal of enforcement addressed in section 3, sub-section 2, of chapter IV. Some of the grounds for the suspension of enforcement are listed in paragraph 2 and include ordinary appellate proceedings that are pending in the Member State of origin or when the time limit for an appeal has not expired, the commencement

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The enforcement of decisions within the overriding mechanism is still governed by a specific regime in Brussels II bis Recast. Inconsistencies can result from the different approaches to the enforcement of return orders and access, on the one hand, and the enforcement of custody rights, on the other. 76 Povse (n 30) para 78. Brussels II bis Recast, art 50.

Rights of the Child in Brussels II Bis Recast

of the procedure to refuse enforcement and an application for the withdrawal of a certificate on privileged decision. The latter indeed includes return orders granted in the second chance procedure – Article 56(2)(d) of the Recast expressly refers to the relevant provisions of Articles 47 and 48 relating to these certificates. Furthermore, paragraph 4 of Article 56 provides for the possibility to suspend enforcement if it ‘would expose the child to a grave risk of physical or psychological harm due to temporary impediments which have arisen after the decision was given, or by virtue of any other significant change of circumstances’. Moreover, if the grave risk is of a lasting nature, the application for enforcement to be refused upon an application in that respect. Section 3 of chapter IV is entitled ‘Common provisions on enforcement’, so it may be concluded that they would also apply with respect to orders rendered within the context of the overriding mechanism. A specific reference to Articles 47 and 48 in paragraph 2(d) supports this line of argumentation. Besides, there is no restriction on the applicability of this provision found in Recital (69).

10.7 Conclusions In general, the provisions of the Brussels II bis Regulation give due consideration to fundamental rights such as the right to respect for family life and the rights of the child. This is particularly so with respect to the notion of the best interests of the child. However, the procedural framework under the Regulation has shown serious drawbacks in practice. This holds true especially for the overriding mechanism or second chance procedure. The case law of both the CJEU and the ECtHR illustrates that such a procedural framework does not function appropriately in practice, and, accordingly, fails to meet the purposes it was intended to achieve. On the contrary, it usually prolongs proceedings in cross-border child abduction cases, thereby running not only counter to the envisaged aim but also contrary to the best interests of the child. In addition, it results in a dichotomy in the application of the 1980 Hague Child Abduction Convention. Consequently, the current overriding mechanism should have been abolished. In its Proposal of 2016 the Commission recognised the need to adjust the Regulation’s procedural framework in matters of parental responsibility. The Recast introduces a number of useful amendments, in particular those regarding cooperation between Central Authorities and those providing for a consolidated system for the recognition and enforcement of decisions. Fundamental rights have also received even more prominent recognition than under the Recast, both in the Preamble and in the normative part.

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Regrettably, however, the Recast maintains the overriding mechanism. Yet it introduces a number of significant alterations and adjustments, which are likely to reduce or mitigate its major shortcomings. Particularly useful are provisions that expressly overrule the ruling in the CJEU Povse judgment. The amendments are likely to better support the best interests of the child than the current legislative framework.

11

Effective Remedies and Fair Trial in Civil Matters: How to Enhance Civil Justice within the Confines of EU Powers DOMINIK DÜSTERHAUS

EU judicial cooperation legislation curtails and conditions the exercise of the rights to a fair trial and an effective remedy with a view to facilitating transnational litigation. Depending on the instrument concerned, procedural fairness may be either scrutinised in the Member State of enforcement or dealt with exclusively in the Member State of origin, subject to compliance with the minimum requirements laid down in that very instrument and, for matters beyond its scope, on the basis of a presumption of compliance with the ECHR. The legitimacy of this approach ultimately turns on whether the Member State of origin effectively provides the requisite protection. While this falls to be ascertained by domestic courts and, if need be, by the CJEU,1 the lack of common procedural standards among the different instruments certainly hampers the implementation of procedural fairness. Moreover, the relevant primary law benchmark, Article 47 CFR, has the peculiarity of being largely self-fulfilling. Indeed, to the extent that measures adopted under Articles 67 and 81 TFEU facilitate cross-border litigation in domestic, rather than EU, law matters and do not themselves establish fair trial principles, the ‘rights and freedoms guaranteed by the law of the Union’, which the provisions of Article 47 CFR seek to protect, are essentially consubstantial with the latter. As a consequence, their scope of application also sets the boundaries for CJEU scrutiny of procedural fairness. From a conceptual point of view, the absence of detailed procedural rules at secondary law level is not problematic as such, given that the need to preserve party equality under all circumstances eschews an overly comprehensive legislative determination of procedural issues. While procedural rules may well facilitate the administration of justice and serve the purpose of legal certainty, excessive formalism in their application can amount to a violation of fair trial rights.2 One would thus consider that the balance struck by the EU legislature between celerity and quality of transnational justice3 in responding to the requirement always to

1 2 3

All opinions expressed in this chapter are purely personal to the author. Case C-420/07 Apostolides EU:C:2009:271, para 60. Miholapa v Latvia App no 61655/00 (ECtHR, 31 May 2007) para 24. On the recognition and enforcement of judgments from other Member States, see Apostolides (n 1) para 73.

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weigh the parties’ rights of access to justice and fair trial in concreto4 is still subject to individual judicial scrutiny5 in the light of Article 47 CFR and the mirroring ECHR guarantees. It is nevertheless submitted that the current state of play involving Member State judiciaries, the EU institutions and the ECtHR does not guarantee the effective exercise of that scrutiny. This chapter will unfold as follows. First, the basic requirements of fair trial and effective remedies in civil matters as enshrined in Articles 6(1) and 13 ECHR are recalled. Next, the CJEU’s limited jurisdiction over these requirements as reflected in Articles 47 and 51(1) CFR is presented, after which their practical application in the context of cross-border recognition and enforcement is illustrated. Building upon these preliminaries, it is argued that the normative and institutional framework of civil judicial cooperation is structurally deficient insofar as the domestic courts’ assessment of whether proceedings are indeed fair remains largely exempt from EU oversight. In conclusion, it is suggested that recourse to Article 19(1)(2) TEU by the CJEU may give it a tighter grip and enhance the quality of civil justice across the EU.

11.1

Fair Trial and Effective Remedies in Civil Matters under the ECHR

The guarantees provided by EU law in the field of judicial cooperation cannot be usefully explored without a basic understanding of the requirements which the ECHR establishes for civil proceedings. As notably follows from Articles 52(3) and 53 CFR, these requirements are indeed good law within the scope of Article 47 CFR as well, and most of them have already been implemented by the CJEU in a variety of matters, both within and beyond the fields of civil procedure and judicial cooperation.6 Pertinent examples concern judicial independence7 and impartiality,8 the regularity of service,9 the effects of prior settlement procedures10 and 4 5

6

7 8

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Case C-327/10 Hypotecˇní banka EU:C:2011:745, paras 49–54. As long as this requirement is met, the diversity of enforcement regimes in the EU appears to be a policy, rather than a fair trial, issue. On how a common standard thereby emerges, see D Düsterhaus, ‘Constitutionalisation of European Civil Procedure as a Starting Point for Harmonisation?’ in F Gascón Inchausti and B Hess, The Future of the European Law of Civil Procedure: Coordination or Harmonisation? (Intersentia 2020). Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117. Case C-175/11 HID EU:C:2013:45; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste EU:C:2008:375. Case C-354/15 Henderson EU:C:2017:157; Case C-34/17 Donnellan EU:C:2018:282. Joined Cases C-317/08 C-318/08 C-319/08 C-320/08 Alassini and Others EU:C:2010:146; Case C-73/16 Puškár EU:C:2017:725; Case C-300/17 Hochtief EU:C:2018:635.

Effective Remedies and Fair Trial in Civil Matters

costs and fees11 on access to justice, legal representation12 and legal aid,13 the right to be heard,14 proceedings in absentia,15 the burden16 and standard17 of proof, time limits,18 the adversarial principle,19 equality of arms,20 and a reasoned judgment21 in reasonable time22 and its enforcement.23 While it thus appears that procedural rights are very much present in the Court’s interpretation of EU law, their specific role in civil matters has been detailed first and foremost in ECtHR case law.

11.1.1 Fair Trial Article 6(1) ECHR covers an important number of procedural guarantees in civil matters. Those relating to access to a court24 include the right to commence civil proceedings,25 both domestically and transnationally,26 to ‘obtain a determination

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Case C-260/11 Edwards and Pallikaropoulos EU:C:2013:221; Case C-61/14 Orizzonte Salute EU:C:2015:655; Case C-495/14 Tita EU:C:2016:230; Case C-439/14 Star Storage EU:C:2016:688. Case C-63/01 Evans EU:C:2003:650; Case C-112/13 A EU:C:2014:2195; Case C-314/13 Peftief EU:C:2014:1645; Case C-532/15 Eurosaneamientos EU:C:2016:932. Case C-279/09 DEB EU:C:2010:811; Case C-156/12 GREP EU:C:2012:342. Case C-682/13 P Andechser Molkerei Scheitz v Commission EU:C:2015:356; Case C-348/16 Moussa Sacko EU:C:2017:591; Case C-341/04 Eurofood EU:C:2006:281. Case C-292/10 G EU:C:2012:142; Hypotecˇní banka (n 4); Case C-619/10 Trade Agency EU:C:2012:531; Case C-112/13 A EU:C:2014:2195. Case C-72/12 Gemeinde Altrip and Others EU:C:2013:712; Case C-479/12 Gautzsch Großhandel EU:C:2014:75; Case C-3/17 Sporting Odds EU:C:2018:130. Case C-74/14 Eturas EU:C:2016:42. Case C-406/08 Uniplex EU:C:2010:45; Case C-418/11 Texdata EU:C:2013:588; Case C-69/10 Samba Diouf EU:C:2011:524; Case C-334/12 RX-II Arango Jaramillo EU:C:2013:134; Case C-426/10 P Bell & Ross v OHIM EU:C:2011:612; Case C-603/10 Pelati EU:C:2012:639; Case C-19/13 Fastweb SpA EU:C:2014:2194. Case C-530/12 P OHIM v National Lottery Commission EU:C:2014:186; Case C-507/10 X EU:C:2011:873; Case C-472/11 Banif Plus Bank EU:C:2013:88; Case C-418/11 Texdata EU:C:2013:588; Case C-129/13 Kamino International EU:C:2014:2041; Case C-89/09 P Commission v Ireland EU:C:2010:772. Case C-580/12 P Guardian Industries EU:C:2014:2363; Case C-199/11 Otis EU:C:2012:684; Case C-169/14 Sánchez Morcillo and Abril Garcia EU:2014:2099; Case C-205/15 Toma EU:C:2016:499; Case C-73/16 Puškár EU:C:2017:725; Case C-543/14 Ordre des barreaux EU:C:2016:605. Case C-283/05 ASML Netherlands EU:C:2006:787; Trade Agency (n 15). Case C-385/07 P Der Grüne Punkt EU:C:2009:456; Case C-40/12 P Gascogne EU:C:2013:768; Case C-500/10 Belvedere Costruzioni EU:C:2012:186; Case C-612/15 Kolev EU:C:2018:392. Toma (n 20). Golder v UK App no 4451/70 (ECtHR, 21 February 1975); see also ML Villamarín López, ‘Access to Civil Justice under European Case Law’ (2017) 7 International Journal of Procedural Law 130. Al-Dulimi and Montana Management Inc v Switzerland App no 5809/08 (ECtHR, 21 June 2016). However, depending on the circumstances, a court’s declining to assume international jurisdiction may or may not constitute an infringement of Article 6(1) ECHR; compare Arlewin v Sweden App no 22302/10 (ECtHR, 1 March 2016) with Naït-Liman v Switzerland App no 51357/07 (ECtHR, 15 March 2018).

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of the dispute’27 in sufficient time,28 legal aid where necessary,29 protection against disproportionate court fees,30 and even recourse to electronic filing, where available.31 As far as a fair hearing itself is concerned, the ECtHR generally takes a holistic approach, looking at the proceedings in their entirety.32 While there is no abstract definition, the requirement of fairness has been found to imply that the parties be given a sufficient and adequate opportunity to present their views on both the legal and factual aspects of the case33 and to oblige courts to conduct a proper examination of all submissions, arguments and evidence adduced by the parties.34 The courts, on their own initiative, must communicate all documents at their disposal, so that parties have an effective opportunity to comment on all available information.35 Parties, for their part, are required to show diligence throughout the proceedings.36 Alongside these general considerations, the ECtHR has further characterised specific guarantees, notably the adversarial principle and the principle of equality of arms, which are closely linked.37 The right to adversarial proceedings requires that any one party be given an opportunity to become apprised of, and comment on, the observations filed or evidence adduced by the other party or parties 38 and any other relevant information at the court’s disposal.39 For equality of arms to be guaranteed, parties must have a reasonable opportunity to present their case and evidence under conditions that do not place them at a substantial disadvantage vis-à-vis the opponent.40 There must be adequate information of the proceedings, notably effective service,41 which requirement has given rise to abundant and quite diverse ECtHR case law.

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Fälie v Romania App no 23257/04 (ECtHR, 19 May 2015). Moor and Others v Switzerland App no 52067/10 (ECtHR, 11 March 2014). Steel and Morris v UK App no 68416/01 (ECtHR, 15 February 2005). Weissman v Romania App no 63945/00 (ECtHR, 24 May 2006). Lawyer Partners AS v Slovakia Apps nos 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08 (ECtHR, 16 June 2009). Avotin‚š v Latvia App no 17502/07 (ECtHR, 23 May 2016). Bricmont v Belgium App no 10857/84 (ECtHR, 7 July 1989). Perez v France App no 47287/99 (ECtHR, 12 February 2004). Kerojärvi v Finland App no 17506/90 (ECtHR, 19 July 1995). Zubac v Croatia App no 40160/12 (ECtHR, 5 April 2018). Regner v Czech Republic App no 35289/11 (ECtHR, 19 September 2017). Lobo Machado v Portugal App no 15764/89 (ECtHR, 20 February 1996). Ruiz Mateos v Spain App no 12952/87 (ECtHR, 23 June 1993); see N Fricero, ‘Le Droit à une Procédure Civile Contradictoire dans la Jurisprudence de la Cour Européenne des Droits de l’Homme’ [2016] Revue Trimestrielle des Droits de l’Homme 381. Ankerl v Switzerland App no 17748/91 (ECtHR, 23 October 1996). Beer v Austria App no 30428/96 (ECtHR, 6 February 2001).

Effective Remedies and Fair Trial in Civil Matters

Article 6(1) ECHR does not provide for specific forms of service of documents42 and allows states to organise their legal systems in a manner which facilitates expeditious and efficient judicial proceedings, including the possibility of issuing default judgments.43 However, notification of proceedings cannot be left entirely at the discretion of the opposing party44 and mere publication in the official gazette is but a measure of last resort.45 If court documents, including summonses to hearings, are not served in person, with a proof of delivery,46 an applicant might be prevented from defending themselves in the proceedings.47 The ECtHR has started to apply a two-step test in this connection.48 Only if the defendant’s default is deemed involuntary will the effective availability of a review be assessed. As part of the first step, special attention is given to the identification of the real domicile of the defendant and the use of effective procedures for service. Also the defendant’s diligence and the claimant’s interest in pursuing their claims are taken into account. To this end, the ECtHR has notably already required that the address for service be researched,49 or that an announcement be published in the mass media.50 However, even an involuntary default does not necessarily violate Article 6(1) ECHR, for it may be found that the defendant has not made effective use of the possibilities to challenge the default judgment. Diligence thus matters in both parts of the test.51 The right to an oral hearing does not constitute an absolute obligation52 and specific circumstances or the nature of a case may call for a written procedure.53 The refusal to hold a hearing should nevertheless be explained.54 The right to be present at a trial can be waived,55 provided that the waiver is made of one’s own free will and unequivocally, that there are minimum safeguards commensurate with its importance and that it does not run counter to any important public interest.56 There also is the right to be assisted by a lawyer.57 42 43 44 45 46 47 48 49 50 51 52 53 54 55

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Lay Lay Company Ltd v Malta App no 30633/11 (ECtHR, 23 July 2013). Aždajic´ v Slovenia App no 71872/12 (ECtHR, 8 October 2015). Schmidt v Latvia App no 22493/05 (ECtHR, 27 April 2017). Miholapa v Latvia App no 61655/00 (ECtHR, 31 May 2007). Godorozea v Moldova App no 17023/05 (ECtHR, 6 October 2009). Aždajic´ v Slovenia (n 43). Dilipak and Karakaya v Turkey Apps nos 7942/05 and 24838/05 (ECtHR, 4 March 2014). Petroff v Finland App no 31021/06 (ECtHR, 3 November 2009). Zavodnik v Slovenia App no 53723/13 (ECtHR, 21 May 2015). F Gascón Inchausti, ‘Service of Proceedings’ (2017) 7 Journal of Private International Law 475. Jussila v Finland App no 73053/01 (ECtHR, 23 November 2006). Schuler-Zgraggen v Austria App no. 14518/89 (ECtHR, 24 June 1993). Pönkä v Estonia App no. 64160/11 (ECtHR, 8 November 2016). Le Compte, Van Leuven and De Meyere v Belgium, Apps nos 6878/75 and 7238/75 (ECtHR, 18 October 1982). Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006). Poitrimol v France App no 14032/88 (ECtHR, 23 November 1993).

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Judgments must be adequately reasoned, meaning that courts have to indicate with sufficient clarity the grounds on which they base their decision.58 Parties can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of the proceedings.59 This allows them to see whether they have indeed been given a fair hearing. It also enables them to make effective use of the possibilities for appeal.60 Whilst the ECHR does not compel contracting states to set up courts of appeal in civil cases, where such courts do exist, the guarantees of Article 6 must be complied with, inter alia, by ensuring that litigants have effective access to the courts.61 As expressly stated in Article 6(1), the hearing and the pronouncement of the judgment must in principle be public.62 Moreover, there is ample case law on the requirement of adjudication by an impartial63 and independent64 tribunal, as well as on trial within a reasonable time.65 Finally, and of particular interest for the purpose of this chapter, Article 6(1) ECHR also guarantees the enforcement of civil judgments.66 While national law must not interfere with that right, unless the interference or refusal to take requisite measures is justified, the ECHR is not opposed to the recognition and enforcement of judgments being made subject to reasonable conditions that conform with the principle of proportionality and international standards. The way in which foreign judgments are incorporated into a state’s legal system is irrelevant, provided that the chosen procedure complies with the general requirement of adjudication within a ‘reasonable time’ as required under Article 6(1) ECHR.67 With regard to violations of fair trial principles in the course of foreign proceedings, the crucial question is to what extent a contracting state incurs consequential responsibility at the stage of recognising/enforcing a decision so blemished. As the ECHR does not require its standards to be imposed on third states, one would instinctively exempt judicial authorities from the duty to verify whether the foreign proceedings are compatible with all the requirements of Article 6(1) ECHR.68 The latter nevertheless has an ‘indirect effect’ insofar as the state called upon to recognise and/or enforce must not deny any scrutiny. As regards the 58 59 60 61 62 63 64 65 66

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Hadjianastassiou v Greece App no 12945/87 (ECtHR, 16 December 1992). Deryan v Turkey App no 41721/04 (ECtHR, 21 July 2015). Hirvisaari v Finland App no 49684/99 (ECtHR, 27 September 2001). Andrejeva v. Latvia App no 55707/00 (ECtHR, 18 February 2009). Levages Prestations Services v France App no 21920/93 (ECtHR, 23 October 1996). Micallef v Malta App no 17056/06 (ECtHR, 15 October 2009). Baka v Hungary App no 20261/12 (ECtHR, 23 June 2016). Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006). Hornsby v Greece App no 18357/91 (ECtHR, 19 March 1997); Avotin‚ š (n 32); Bourdov v Russia App no 59498/00 (ECtHR, 7 May 2002). P Kinsch, ‘Enforcement as a Fundamental Right’ [2014] Nederlands Internationaal Privaatrecht 540. Drozd and Janousek v France and Spain App no 12747/87 (ECtHR, 26 June 1992).

Effective Remedies and Fair Trial in Civil Matters

enforcement of foreign civil judgments specifically, Pellegrini v Italy69 suggested fair trial standards should be strictly scrutinised in the case of judgments emanating from third countries. The scrutiny of EU judicial cooperation measures under the ECHR may however be limited to manifest deficiencies, as long as the so-called Bosphorus presumption70 applies, according to which the mere implementation of legal obligations flowing from EU membership normally implies compliance with ECHR requirements.71

11.1.2 Effective Remedies Article 13 ECHR seeks to ensure that protection of the rights established by the ECHR is guaranteed by an effective remedy. Its relationship with Article 6(1) ECHR is not entirely straightforward. While, in the abstract, a violation of Article 6(1) ECHR undoubtedly triggers the right to an effective remedy, the distinction between the two provisions is blurred by the ECtHR’s holistic approach to proceedings, which has led it to treat the question of an effective remedy as coming within the scope of Article 6(1), so long as fairness is ultimately respected.72 Even though joint violations of Articles 6 and 13 ECHR are generally excluded in respect of civil rights, since the judicial safeguards of Article 6(1) are stricter than and subsume those of Article 13, a parallel application of Articles 6 and 13 ECHR can be envisaged where the alleged violation concerns a procedural issue beyond the asserted substantive right. This is notably so where the right to trial within a reasonable time is violated.73 So far, the ECtHR has refused to transpose these findings to other situations under Article 6(1) ECHR. This is particularly the case with access to the preliminary ruling procedure,74 which is of interest for the purpose of this chapter. For the ECtHR, having a matter referred for a preliminary ruling does not constitute a right for the parties75 and is not considered to be a remedy within the meaning of Article 13 ECHR. This is fully in line with the original concept of the preliminary ruling procedure under EU law, but not necessarily convincing, as it overlooks the binding effect76 of preliminary rulings on the national judge. 69 70

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Pellegrini v Italy App no 30882/96 (ECtHR, 20 July 2001). Bosphorus Hava Yolları Turizm ve Ticaret Anonim S‚irketi v Ireland App no 45036/98 (ECtHR, 30 June 2005). See D Düsterhaus, ‘The ECtHR, the CJEU and the AFSJ: A Matter of Mutual Trust’ (2017) 42 ELRev 338. 73 Avotin‚ š (n 32). Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000). Ullens de Schooten and Rezabek v Belgium Apps nos 3989/07 and 38353/07 (ECtHR, 20 September 2011); see T Schilling, ‘Art. 13 EMRK und der Rechtsschutz gegen den Richter’ (2014) 41 Europäische Grundrechte Zeitschrift 596. Coëme and Others v Belgium, Apps nos 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96 (ECtHR, 22 June 2000). See D Düsterhaus, ‘Eppur Si Muove! The Past, Present, and (Possible) Future of Temporal Limitations in the Preliminary Ruling Procedure’ (2017) 36 Oxford Yearbook of European Law 237.

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According to the ECtHR, Article 6 ECHR merely requires national courts whose decisions are not open to appeal under domestic law to give reasons for their refusal to request a preliminary ruling on the interpretation of EU law, in the light of applicable law and the exceptions laid down in CJEU case law (that the question is irrelevant, has already been answered or is not open to doubt).77

11.2

Fair Trial and Effective Remedies in Civil Matters under the CFR

Just like the requirements laid down in Articles 6(1) and 13 ECHR, the provisions of Article 47 CFR differ from substantive rights in their purpose and operational mode. Fair trial requirements as laid down in Articles 47(2) CFR and 6(1) ECHR are meant to secure the judicial assertion of rights, whereas specific shortcomings in this connection may call for a remedy within the meaning of Articles 13 ECHR and 47(1) CFR. While the guarantees afforded by the two articles thus mirror each other, the right to effective judicial protection under Article 47 CFR has nevertheless acquired a separate identity, content and substance under EU law.78 This is particularly true in the field of judicial cooperation. A closer look at their relationship in theory and practice may clarify what this observation means.

11.2.1 The Theory: Mirroring Guarantees, Interrelating Scopes Although it follows from Article 52(3) CFR that the protection of the rights enshrined in the Charter may not come short of the guarantees afforded by the ECHR, this does not preclude an autonomous interpretation of those rights, not least because, again as provided in Article 52(3), the Charter can always grant more extensive protection than the ECHR. This is not surprising, given that the Convention’s purpose is to provide merely minimum guarantees. Knowing that directly applicable EU judicial cooperation provisions oust domestic rules that fall within their scope, rather than allowing for procedural autonomy and fundamental rights pluralism,79 one would expect procedural rights issues to be increasingly determined under Article 47 CFR and the auspices of the CJEU. Indeed, under the Melloni80 doctrine, most provisions of the various judicial 77

78 79 80

Dhabi v Italy App no 17120/09 (ECtHR, 8 April 2014); Vergauwen and Others v Belgium App no 4832/04 (ECtHR, 10 April 2012). Case C-69/10 Samba Diouf EU:C:2011:102, Opinion of AG Cruz Villalón, para 39. D Düsterhaus, ‘Procedural Primacy and Effective Judicial Protection: A Trilogue’ (2016) 23 MJ 317. Where Member State action is entirely determined by EU law, national courts may not apply diverging national standards of fundamental rights protection; see Case C-399/11 Melloni EU:C:2013:107, para 60.

Effective Remedies and Fair Trial in Civil Matters

cooperation instruments appear to exclude the application of diverging standards. But, then again, many of these instruments are merely complementary to existing domestic provisions and the common enforcement regime of the Brussels I Regulation.81 Moreover, few actually concern genuine procedural issues and, where necessary, refer to national law instead,82 thus leaving room for procedural autonomy and fundamental rights pluralism. In this connection, it should be recalled that the scope of Article 47 CFR and the CJEU’s interpretative powers are limited to situations in which EU law is implemented within the meaning of Article 51 CFR.83 While large chunks of domestic civil litigation do not meet this condition, those that do result in a complex juxtaposition of EU, ECHR and domestic procedural fundamental rights. For example, at the stage of initial proceedings, in the course of which domestic and ECHR guarantees have to be observed, Article 47 CFR too is implicated where substantive EU law is the subject of the litigation84 or frames procedural obligations;85 where EU law sets out common/specific procedural rules;86 where jurisdiction is examined on the basis of EU law rules;87 where service is (to be) effected pursuant to Regulation (EC) 1393/2007;88 where a judgment is to be certified for the purpose of cross-border enforcement,89 or such enforcement is contested;90 where evidence is gathered abroad;91 or where

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Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1, now recast as Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1 (Brussels Ia). See Section 11.2.3.2. See M Safjan, D Düsterhaus and A Guérin ‘La Charte des Droits Fondamentaux de l’Union Européenne et les Ordres Juridiques Nationaux, de la Mise en Œuvre à la Mise en Balance’ [2016] Revue Trimestrielle de Droit Européen 219. DEB (n 13). In the field of consumer protection, see eg Case C-169/14 Sánchez Morcillo and Abril Garcia EU:2014:2099. As regards fundamental freedoms, see Case C-291/09 Francesco Guarnieri & Co EU:C:2011:217. eg the Patent Court Rules or incidental provisions of the directives on intellectual property (Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights [2004] OJ L195/16) and anti-trust private enforcement (Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014] OJ L349/1). Notably the Brussels I(a) Regulation; see Case C-112/13 A v B and Others EU:C:2014:2195. 89 Henderson (n 9). Case C-300/14 Imtech Marine Belgium EU:C:2015:825. GREP (n 13). Council Regulation (EC) 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001] OJ L174/1.

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EU law makes specific procedural provision for the domestic adjudication of cross-border disputes.92 Fewer than twenty-five CJEU judgments rendered in the field of EU civil judicial cooperation since 2009 specifically concern the right to effective judicial protection under Article 47 CFR. While these judgments set out some topical considerations, the place of fundamental rights in this area remains grossly under-defined. One may even wonder whether, due to their technical, ‘rigid’93 nature, judicial cooperation rules are in fact amenable to examination from a fundamental rights perspective. In this vein, consider, on the one hand, the Court’s refusal to see in the availability of a translation of the documents instituting proceedings a component of a fair trial.94 And, on the other, Advocate General Jääskinen’s opinion that Article 27(1) of Brussels I (lis pendens) was a purely technical provision, the application of which should raise no issue as regards Article 47 of the Charter, since in all Member States parties benefit from access to justice and a fair hearing before the court first seised.95 It nevertheless appears that the judicial protection guarantees of Article 47 are informing the interpretation of judicial cooperation rules in several ways. Three may be mentioned. Firstly, ever since the CJEU infused the Brussels cosmos with fundamental rights considerations in 1980,96 it has become settled case law that under Brussels I proceedings leading to the delivery of judicial decisions must take place in such a way that the rights of the defence are observed.97 The application of EU rules of judicial cooperation thus triggers Article 47 CFR. In GREP,98 for example, the Court found that the right to be exempted from paying the cost of the proceedings and/or lawyer’s fees, which Article 47 CFR confers, applies to an action that challenges a decision of enforceability ordering conservatory attachment measures. Secondly, the need to facilitate access to justice imposed by Article 67(4) TFEU must be read in the light of Article 47 CFR, so fair trial requirements cannot be ignored when adopting judicial cooperation measures. 92

93

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96 97 98

See Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes |2003] OJ L26/41, at issue in Case C-670/15 Šalplachta EU:C:2017:594; Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3. J Bomhoff, Judicial Discretion in European Law on Conflicts of Jurisdiction (Sdu Uitgevers 2005) 21. Case C-14/07 Ingenieurbüro Weiss EU:C:2008:264. Case C-438/12 Weber v Weber EU:C:2014:43, Opinion of AG Jääskinen; the Court did not address this issue. Case C-125/79 Denilauler EU:C:1980:130. See Case C-394/07 Gambazzi EU:C:2009:219, para 23; Hypotecˇní banka (n 4) para 48. GREP (n 13).

Effective Remedies and Fair Trial in Civil Matters

Thirdly, even without legislative harmonisation of procedural provisions, the judicial protection guarantees of the Charter can become directly applicable as absolute limits to national procedural autonomy, safeguarding against diverging and, in any case, insufficient standards in the Member States.99 This being said, the implementation of procedural fundamental rights in the civil branch of EU judicial cooperation is particularly challenging. Granted, compliance with a core of procedural fundamental rights is generally easily discernible. One would not hesitate to object to a blunt refusal to bring a case to trial, notify it to the defendant100 or take account of the latter’s submissions. Beyond such blatant violations, however, procedural fairness is difficult to assess in abstracto. In all cases, the specific aspects of access to justice (‘effective remedy’) and fair trial (‘fair hearing’), which Article 47 CFR juxtaposes in its first two paragraphs, must be weighed in the balance,101 as ultimately required under Article 52(1) CFR, and account needs to be taken of the substantive rights at stake. This is why the considerations set out in a specific judgment on the interpretation of Article 47 CFR may not suffice as such to establish an EU-wide standard. Moreover, while the conditions laid down in the various judicial cooperation instruments framing cross-border enforcement call for an interpretation (in the light102) of103 Article 47 CFR, the latter is not the sole benchmark for procedural fairness as long as public policy clauses allow for scrutiny based on diverging domestic standards. This may be illustrated by the common regime for the enforcement of judicial decisions from other Member States, as laid down in the Brussels I Regulation.

11.2.2 First Generation Judicial Cooperation: Exequatur and Public Policy Review Regulation (EC) 44/2001 expressly sought to ensure the free movement of judgments from Member States in civil and commercial matters by simplifying the formalities for recognition and enforcement. However, as the CJEU constantly recalls, that objective cannot be attained by undermining in any way the right to a fair hearing.104 Whilst the regulation thus allows the (recognition and) enforcement of foreign judicial decisions to be refused, this is only possible on narrow grounds, set out in Articles 34 and 35 of that regulation. These grounds continue to apply under

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D Düsterhaus, ‘Judicial Coherence in the AFSJ: Squaring Mutual Trust with Effective Judicial Protection’ (2015) 8(2) Review of European Administrative Law 151. Beer v Austria (n 41). Hypotecˇ ní banka (n 4) paras 49–54. Imtech Marine Belgium (n 89); Case C-119/13 eco cosmetics EU:C:2014:2144; Eurofood (n 14); Case C-559/14 Meroni EU:C:2016:349. 104 GREP (n 13). ASML Netherlands (n 21).

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Article 45 of the recast Regulation (EU) 1215/2012.105 Only the requirement to obtain a declaration of enforceability, challengeable by the judgment debtor, has been abandoned. Instead, the latter now has to apply for a refusal of enforcement. With regard to the elements of a fair trial, a dual regime, which recently seems to become unified, has emerged under the relevant provisions. On the one hand, per Article 34(2) of Brussels I, a judgment shall not be recognised where it was given in default of appearance and the defendant was not served with the document that instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable them to arrange for their defence, unless106 the defendant failed to commence proceedings to challenge the judgment when it was possible for them to do so. In any case, save where the initial proceedings were purely domestic and became cross-border only at the enforcement stage, Article 47 CFR is the relevant benchmark at both stages. On the other hand, the public policy clause of Article 34(1) of Brussels I, which does not expressly address procedural irregularities – and is superseded107 by Article 34(2) in respect of defective service – allows judges to base their refusal of recognition or enforcement on a manifest violation of a fundamental principle of their internal legal order. It has been observed that most of the relatively rare applications of public policy in litigation practice indeed relate to procedural matters.108 While the Member States are in principle free to determine the requirements of public policy according to their own conceptions of it, the parameters within which it allows recognition and enforcement to be refused are subject to review by the CJEU.109 In Krombach110 the CJEU set a standard, according to which recourse to the public policy clause must be possible where the defendant has not been protected from a manifest breach of their right to defend themselves before the court of origin. In Gambazzi111 it insisted on the importance of being able to scrutinise, for defence rights purposes, a procedural exclusion measure (debarment order) that resulted in a ruling on the applicant’s claims without the defendant having been heard. In the same vein, in Trade Agency the CJEU held that the public policy clause allowed a court to refuse enforcement of a default judgment that did not

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Brussels Ia (n 81). This condition distinguishes the regime under Brussels I from its predecessor under the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. That said, the assessment under both clauses occasionally converges; see Trade Agency (n 15). See B Hess and T Pfeiffer, ‘Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law’ Study PE 453.189 commissioned by EP Committee on Legal Affairs (2011) 58. 110 111 Apostolides (n 1) para 57. Case C-7/98 Krombach EU:C:2000:164. Gambazzi (n 97).

Effective Remedies and Fair Trial in Civil Matters

include any assessment of the subject matter or the basis of the action nor any argument on its merits.112

11.2.3 Second Generation Judicial Cooperation: State of Origin Challenges 11.2.3.1

The Fundamental Idea of Exhaustion of Remedies

Starting with the judgment in Diageo Brands, the conditions for refusing recognition and enforcement in the two cases of ineffective service and public policy violations have converged insofar as the CJEU now also requires in the latter case that the individuals concerned must avail themselves of any possible remedy in the Member State of origin with a view to preventing a breach of public policy before it occurs.113 This is a bold move indeed. Shortly after the entry into force of Brussels Ia, which saw the Commission’s idea to do away with the public policy exception fail, the CJEU brought the regulation’s enforcement regime in line with the specific regimes established by the regulations on the European Enforcement Order,114 small claims,115 the order for payment procedure116 and maintenance,117 all of which provide for remedies exclusively in the Member State of origin, an idea that the CJEU has also underlined in a case118 relating to the Brussels IIa Regulation.119 There are indeed valid reasons for letting the judgment Member State ensure procedural fairness in the first place.120 In view of the aim to achieve free movement not only of all economic factors, but also of judicial decisions, the review of such decisions on public policy grounds is somewhat anachronistic in theory and, as research shows,121 hardly ever used in practice. Moreover, the proper functioning of the regime originally established by the Brussels Convention and

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113 Trade Agency (n 15). Case C-681/13 Diageo Brands EU:C:2015:471. Regulation (EC) 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/15 (EEO Regulation). Regulation (EC) 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure [2007] OJ L199/1 (ESCP Regulation). Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure [2006] OJ L399/1 (EOPP Regulation). Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1 (MO Regulation). Case C-491/10 Aguirre Zarraga EU:C:2010:828. Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000 [2003] OJ L338/1. 121 See Düsterhaus, ‘The ECtHR, the CJEU and the AFSJ’ (n 71). See Hess and Pfeiffer (n 108).

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largely122 continued under the Brussels I Regulation depends on the CJEU’s monitoring of the limits for imposing the enforcement Member State’s public policy on the judgment Member State and the litigating parties. Since most of the (few) CJEU judgments in which the requisite review has been performed have contented themselves with giving broad instructions,123 the current approach to public policy clauses does not seem to favour the emergence of a common procedural standard. An unconditional obligation to exhaust all possible means of challenge is problematic, however, as there may well be circumstances in which this overly burdens the judgment debtor.124 In any case, the exhaustion approach does not provide effective safeguards in the case of structurally defective judicial protection in the judgment state: a party would be obliged to challenge an unfair judgment even where there is little or no chance of success. What is more, by insisting on the formal requirement to exhaust available remedies, limits the number of public policy challenges and, thus, the opportunity it has to scrutinise the scope of national public policy. Diverging standards of procedural fairness among the Member States may consequently subsist. As we shall see, a similar danger exists under the automatic enforcement instruments.

11.2.3.2

Second Generation Instruments and State of Origin Scrutiny

It is submitted that the EU instruments facilitating the cross-border enforcement of various monetary claims under the principle of mutual trust do not sufficiently ensure that all aspects of a fair trial are indeed respected. This is mostly due to the EU legislature’s failure to compensate for the exclusion of scrutiny in the requested Member State by establishing mandatory standards for all fair trial guarantees in the Member State of origin. Effective observance of these guarantees is a mere postulate in the recitals of the different instruments, conditional upon the Member States complying with their ECHR obligations only, but without exception, where they are the Member State of origin. The focus is on the free circulation of decisions. Granted, unlike the Brussels IIa regime for the return of illegally deported children and, to a certain extent, the MO Regulation,125 these instruments lay down minimum standards, the application of which was thought to uphold the ECHR fair trial guarantees126 and to render scrutiny by the enforcement state unnecessary.127

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Article 34(1) of Brussels I makes refusal for ineffective service conditional upon the decision having been challenged insofar as possible in the judgment state. 124 eg Trade Agency (n 15). See Case C-70/15 Lebek EU:C:2016:226, Opinion of AG Kokott. But see Articles 11 and 19 on, respectively, admissibility/service and review. See Council, ‘Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters’ [2001] OJ C12/1, 5–6. EOPP Regulation, recital (9).

Effective Remedies and Fair Trial in Civil Matters

However, not only is the scope of the minimum standards narrower than that of Articles 6(1) ECHR and 47(2) CFR, but also it is far from certain that they could be effectively scrutinised. As regards the scope of fair trial guarantees, the legislature chose to address only those problems that most typically arise in cross-border litigation, notably the methods of effective service, leaving aside issues such as the independence and impartiality of judges, the right to be heard and other specific fair trial requirements. While this holds true for all the instruments, whether they provide for an autonomous procedure (eg EOPP and ESCP Regulations) or not (EEO Regulation), there are still important differences. However, all regulations refer in one way or another to national procedural rules128 which in any event remain unaffected beyond the remit of the EU instruments. Even though the provisions governing these instruments may not, as such, violate fair trial guarantees, they cannot effectively prevent such violations either. First of all, there is the issue of ineffective service and its consequences. The EEO and EOPP Regulations allow for numerous methods of ‘certain’ or ‘highly likely’ service but, unlike the ESCP Regulation129 do not prioritise them. The only130 safeguard remains that the address for service must be known.131 Where a judgment has been served on the debtor using one of those methods and the debtor has not challenged it, despite being able to do so and being aware of the conditions for doing so, that judgment may, according to Article 18(1) of the EEO Regulation for example, be certified as a European Enforcement Order even though the procedural requirements set out in Articles 13 to 17 of that regulation have not been met in the Member State of origin. It may be doubted, however, that the regulations allow for service without proof of delivery, as this cannot guarantee that the judgment debtor has been made aware of the order, proceedings or judgment against them, which, if unopposed,132 will be enforced. As the law stands, it also seems that problematic judgments such as those at issue in Krombach133 and Gambazzi134 could circulate freely based on a European Enforcement Order (EEO) even though, in the context of the Brussels I regime, the requested court would carefully scrutinise them. Secondly, there is the question of effective review.

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129 See Case C-94/14 Flight Refund EU:C:2016:148. See ESCP Regulation, art 13. Besides the requisite information of the defendant in the standard form (which must nevertheless be served on the defendant in the first place …); see Case C-484/15 Zulfikarpašic´ EU:C:2017:199, para 48. Even though this condition does not seem to be universally applied; see Case C-518/18 RD EU:C:2019:546. The EEO Regulation relies on a very broad understanding of ‘uncontested’ claims; see esp art 3(1)(b)–(c). 134 Krombach (n 110). Gambazzi (n 97).

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The EEO Regulation requires that a review be available in the Member State of origin (Article 19) and, in this connection, allows for the stay or limitation of enforcement in the Member State of enforcement (Article 23). Given that, as recently recalled by the CJEU,135 this means a full review both in law and in fact, this regulation appears to be more protective than the EOP Regulation, which states in its Recital (25) that a review in exceptional cases should not provide a second opportunity to oppose the claim. Both regulations nevertheless suffer from one and the same conceptual defect, which is the exclusion of illegally issued orders from the scope of review. Indeed, as the CJEU held in eco cosmetics, the review procedure under Article 20 of the EOPP Regulation is not applicable where it appears that a European order for payment has not been served in a manner consistent with the minimum standards laid down in Articles 13–15 of that regulation.136 As a consequence, Member States must provide for an appropriate procedure to invalidate such an order. By contrast, the amended ESCP Regulation137 now specifies in Article 18 that a review is available for a defendant upon whom the claim form has not been served in a timely manner and in such a way as to enable the defendant to prepare a defence without any fault on their part. Even though, in Imtech Marine, the CJEU did not expressly answer the referring court’s analogous question on the EEO, it follows from the judgment that national procedures which meet the requirements of Article 19 may also be applied to the review of orders issued in violation of the minimum standards. One could, moreover, argue that a default judgment delivered in breach of the minimum standards can also be appealed in a separate domestic procedure. Indeed, Article 23, first indent, of the EEO Regulation, which refers to challenges that include an application for review within the meaning of Article 19, may reasonably be understood as acknowledging the existence of such domestic procedures – which, coincidentally, Article 17(1) of the ESCP Regulation expressly does for matters falling within its scope.138 Finally, as concerns Article 20(2) EOPP, the Court has made clear that neither the inclusion of wrong information in the claim form139 nor the failure to observe the time limits for lodging an opposition140 constitute exceptional circumstances. If one thus takes the view that, unlike the MO or the modified ESCP Regulations, the EEO and the EOPP Regulations do not provide for procedural guarantees in

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136 Imtech Marine Belgium (n 89). eco cosmetics (n 102) para 46. Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) 861/2007 establishing a European Small Claims Procedure and Regulation (EC) 1896/2006 creating a European order for payment procedure [2015] OJ L341/1. T Schilling, ‘Das Exequatur und die EMRK’ (2011) 31 Praxis des Internationalen Privatrechts 31. Case C-245/14 Thomas Cook Belgium EU:C:2015:715. Case C-324/12 Novontech Zala EU:C:2013:205.

Effective Remedies and Fair Trial in Civil Matters

the Member State of origin sufficient to compensate for the absence of review in the enforcement Member State, the question of their validity arises. It may well be answered in the affirmative, for the free circulation of decisions which they achieve constitutes a legitimate objective whose implementation does not appear to be manifestly disproportionate. Whether their application in concrete situations would pass this test is impossible to answer in the abstract, however. It would require this issue to be raised in court and, eventually, before the CJEU as the arbiter of EU judicial cooperation. But this is precisely where the real problem lies. It concerns the institutional guarantees of judicial independence and impartiality. To what extent does EU law allow for them to be effectively scrutinised?

11.4 A Spurned Remedy: Preliminary References as a Means of Enhancing Justice The extent to which the fairness of an exequatur-free regime depends on the alertness of judges and their willingness to make preliminary rulings is illustrated by the CJEU’s Imtech Marine Belgium judgment on the EEO.141 The case was referred by a Belgian court of appeal following a first instance refusal to certify a default judgment as an EEO on account of the absence of appropriate national legislation. The CJEU found that the court ruling on an application to have a judgment delivered in absentia certified as an EEO ‘must satisfy itself that its national law effectively and without exception allows for a full review, in law and in fact, of such a judgment … and that it allows the periods for challenging a judgment on an uncontested claim to be extended, not only in the event of force majeure, but also where other extraordinary circumstances beyond the debtor’s control prevented him from contesting the claim in question’.142 Most importantly, it insisted that only a judge could certify a judgment as an EEO.143 As the CJEU has pointed out, in situations where there is uncertainty over whether the minimum requirements intended to safeguard the debtor’s rights of defence and the right to a fair trial have been met, the legal qualifications of a judge are crucial to ensuring a correct assessment of the remedies available under national law. Only a court or tribunal within the meaning of Article 267 TFEU (ie independent, established by law, permanent, with compulsory jurisdiction, deciding inter partes, applying rules of law)144 can ensure, by requesting a preliminary ruling from the CJEU, that the minimum requirements laid down by the EEO Regulation are interpreted and applied uniformly throughout the EU.145 What the 141 144 145

142 143 Imtech Marine Belgium (n 89). ibid para 42. ibid para 50. Associação Sindical dos Juízes Portugueses (n 7) para 38. Imtech Marine Belgium (n 89) para 47.

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CJEU did not specify, however – given that there was no question on this precise point – was that the judge who certifies the decision must be distinct from the judge(s) who issued it. Such a requirement would constitute an additional guarantee of impartiality and objectivity.146 While these qualities were clearly guaranteed in Imtech Marine Belgium – although this may have been helped by the fact that the (legislative) defect was external to the actual proceedings – this is not always the case. Conversely, while the interpretation given in eco cosmetics147 did not necessarily serve the proper functioning of the EEO, the German court’s reference to the CJEU has allowed the latter to clarify the law, as a consequence of which the German legislature has created the requisite remedy.148 CJEU involvement was thus crucial in ensuring a fair trial. This is why both the eco cosmetics and the Imtech Marine Belgium judgments show how important it is to guaranteeing procedural fairness that questions on the interpretation of the EU standard of protection be referred to the CJEU. Indeed, as the Court regularly recalls, the preliminary ruling procedure provided for in Article 267 TFEU complements the system of legal remedies in each Member State.149 It is nevertheless submitted that because neither the CJEU nor the ECtHR insist on, or police, the obligation for all courts triggering cross-border effects to refer doubts as to the fairness of proceedings in the judgment state to the lawful judge – that is, the CJEU150 – the current state of play does not guarantee that judicial protection and fair trial rights are effectively observed in all circumstances. Insisting on the obligation to submit presumed fundamental rights violations to the CJEU would not upset the EU judicial architecture. Rather, the pivotal role of judges in the context of civil judicial cooperation would be underscored, and their obligations specified. Simply stated, any national judge whose compliance with a judicial cooperation obligation appears to deny a fair trial is obliged to request a preliminary ruling under Article 267 TFEU. While, formally, only courts of last resort and those who question the validity of EU acts are under such an obligation, it appears that any court required to give immediate extraterritorial effect to a judicial decision is indeed a court of last resort.151 In such a situation, the submission of a preliminary reference thus appears to be mandatory under EU law as it stands. One may well consider this to be yesterday’s news as any judge faced with the dilemma of violating either the right of access

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One would otherwise have to rely on the diligence of higher or constitutional courts; see, for example, the circumstances leading to the reference in RD (n 131). 148 eco cosmetics (n 102). ZPO § 1092a, inserted by a law of 11 June 2017 (BGBl I S 1607). 150 Apostolides (n 1) para 60. Düsterhaus, ‘The ECtHR, the CJEU and the AFSJ’ (n 71). See in this connection the judgment of the Czech Constitutional Court of 26 September 2017, no II ÚS 4255/16, occasioning the reference RD (n 131).

Effective Remedies and Fair Trial in Civil Matters

to justice or the fair trial guarantees would presumably refer the matter to the CJEU. However, the available numbers do not support this view. Whilst civil judicial cooperation cases currently account for roughly 5 per cent of all judgments delivered in any given year, very few references raise a fair trial concern.152 It thus seems that most situations that give rise to such concerns do not lead to a preliminary ruling, even though they should.153 In this connection, it should be recalled that a party’s request is not a pre-condition for a reference.154 Even in party-led civil proceedings, judges are the ultimate keepers of procedural legality.155 At the same time, preliminary rulings on points of EU law are not a panacea, for the CJEU is not in a position to scrutinise those aspects of an allegedly unfair procedure that are not governed by EU law. Yet, fairness must be assessed in the light of all aspects and stages of the proceedings. In view of its limited competences and in the absence of a unified law on civil procedure, the CJEU must base the terms of its oversight on the idea that the legitimacy of cross-border enforcement without further scrutiny turns on whether national judges are effectively able to properly weigh the competing rights in the balance. This presupposes that the independence, impartiality and quality of justice are guaranteed. If this is not the case, judicial cooperation must not proceed, and CJEU preliminary rulings have proven to be a means of preventing possible violations of fair trial rights. Alas, Article 47 CFR does not in itself authorise the CJEU to scrutinise the quality of domestic judicial systems as a pre-condition for ensuring the effectiveness and fairness of judicial protection. Nor can the legislative and monitoring activities of the EU Commission effectively steer the Member States towards a common high standard of judicial protection. Yet, problems certainly exist in this regard, judging by the numerous reports and resolutions on the quality, independence and impartiality of justice in several EU Member States. This is why the CJEU’s recent willingness to base an evaluation of judicial independence on Article 19 TEU156 deserves praise and attention. It may eventually bridge the perceived gap in scrutiny. Indeed, since Article 19(1)(2) TEU relates to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) CFR, it seems to allow for a more generalised assessment of the institutional guarantees of independent, fair and effective justice in the Member States. In this connection, the CJEU rightly points out that all courts and tribunals acting in the fields covered by EU law must meet the requirements of

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For example, three out of twenty-five judgments issued in the field of civil judicial cooperation in 2017 addressed such concerns, and two out of thirty in 2018. See D Düsterhaus, ‘In the Court(s) We Trust: A Procedural Solution to the Mutual Trust Dilemma’ (2017) 1 Freedom, Security and Justice Review: European Legal Studies 26. 155 Case C-2/06 Kempter EU:C:2008:78, para 41. See Düsterhaus, ‘Eppur Si Muove!’ (n 76). Associação Sindical dos Juízes Portugueses (n 7).

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effective judicial protection in order to engage in judicial cooperation.157 Insofar as it focusses on the structural and institutional aspects of fair and effective judicial protection, the Article 19 TEU approach complements CJEU Charter scrutiny without suggesting that there will be a case-by-case examination of whether a given domestic court has properly weighed the requirements of a fair trial. Rather than acting as the fourth instance court158 that the ECtHR rightly does not want to be, the CJEU would merely ensure that all national judges are indeed able to grant fair and effective judicial protection.

11.5

Conclusion

This chapter has taken issue, not so much with the sparse and varying legislative implementation of the fair trial and effective remedy guarantees in EU civil judicial cooperation, but rather with their scope. EU legislation in this field mostly delegates responsibility for fair and effective judicial protection to the national court systems, while CJEU scrutiny based on Article 47 CFR will inevitably remain incidental so long as there are no common provisions implementing those guarantees. New approaches aimed at guaranteeing compliance with an adequate standard of judicial protection in all Member States should thus be tested. In this regard, it remains to be seen whether Article 19(1)(2) TEU constitutes an appropriate means of enhancing civil justice across the EU, thereby legitimising the promotion of automatic cross-border recognition and enforcement. Pending clarification of the relationship between Article 19(1)(2) TEU and specific elements of procedural fairness, it is submitted that CJEU scrutiny of the structural pre-conditions of a fair trial, notably whether the independence and impartiality of judges are ensured in the Member States, already helps to enhance the quality of civil justice across the EU.

157 158

Case C-216/18 PPU LM EU:C:2018:586, para 54. See M Dahlberg, ‘It is Not Its Task to Act as a Court of Fourth Instance: The Case of the European Court of Human Rights’ (2014) 7(2) European Journal of Legal Studies 77, 84ff.

12

Procedural Rights (and Obligations) of Parties to Civil Proceedings AGNIESZKA FRA¸CKOWIAK-ADAMSKA

12.1 Introduction The procedural rights of parties to civil proceedings in the Area of Freedom, Security and Justice (AFSJ) raise the preliminary question of what the term ‘procedural rights’ actually means. At a purely philosophical level, according to Dworkin’s famous distinction between rules and principles,1 procedural rights belong to the category of principles.2 While rules are applicable in an all-or-nothing fashion, principles ‘do not set out legal consequences that follow automatically when the conditions provided are met’ but simply ‘state a reason that argues in one direction'.3 According to Dworkin, procedures are ancillary to substantive law and their main function is to ensure that the outcome is as close as possible to the parties’ substantive entitlements.4 Because organising a system of conflict resolution must take into account the procedure’s social costs, the parties to the proceedings do not have a right to the most accurate procedures possible for adjudicating their claims in civil law, but merely a right to ‘equal concern and respect in how error risk is distributed’.5 This definition could be useful in assessing, at the most general level, the fairness of EU legislation and case law in the AFSJ. At a more concrete, legal level, in Europe the procedural rights of parties stem from the right to a fair trial. This is a fundamental right protected in Member States of the EU by three legal orders – national (constitutions, bills of rights), international (mainly Articles 6 and 13 of the European Convention on Human Rights (ECHR)) and the EU (mainly Article 47 of the Charter of Fundamental Rights

1

2

3

4 5

Ronald M Dworkin, ‘The Model of Rules’ (1967) 35 University of Chicago Law Review 14, http:// digitalcommons.law.yale.edu/fss_papers/3609. This distinction does not coincide with the distinction between rights and principles introduced in the Charter of Fundamental Rights of the EU. See Tobias Lock, ‘Rights and Principles in the EU Charter of Fundamental Rights’ (2019) 56 CMLRev 1201, esp 1212–13. Dworkin (n 1) 25–26. Principles also have ‘the dimension of weight or importance. When principles intersect …, one who must resolve the conflict has to take into account the relative weight of each.’ ibid 27. RG Bone, ‘Procedure, Participation, Rights’ (2010) 90 Boston University Law Review 1011, 1016. ibid 1008.

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of the European Union (Charter)). The coexistence of multiple sources can lead to interaction between them, as highlighted in Section 12.2. Another noteworthy feature of the protection of procedural rights in Europe relates to their scope of application. National and ECHR fundamental rights apply to all civil proceedings and to such proceedings in their entirety, from start to finish. The Charter’s rights are more problematic, as they apply only within the scope of EU law. The parties can rely on them in cases in which Member States ‘are implementing Union law’.6 Hence, the rights stemming from Article 47 of the Charter can potentially apply to all cases that come within the scope of EU law but not to those that lie outside of it.7 The application of Article 47 of the Charter is thus limited to cases that relate to substantive EU law8 (national civil proceedings relating to rights arising from substantive EU law potentially lie fully within the scope of EU law) or to those elements of national civil procedures that are governed by EU law. The latter brings us to Article 81 TFEU related to EU policy on judicial cooperation in civil matters, which is important for procedural rights for two reasons. Firstly, by adopting rules on civil procedure, the EU allows the Charter to be applied in this field. Secondly, the EU legislator establishes a standard of procedural rights protection for such aspects of the procedure. Article 81 TFEU gives the EU competence to legislate to ‘develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases’. On this basis, over nineteen years,9 the EU has adopted twenty-four legal acts10 relating to international civil procedure and conflict of laws, but not to general civil proceedings.11 The EU thus imposes the recognition of judgments in civil matters

6 8

9 10

11

7 Charter, art 51(1). See Section 12.3.1. As when a national law implements an EU legal act (eg on consumers) or conflicts with freedoms intrinsic to the internal market or EU citizenship. From the moment it became EU policy (entry into force of the Amsterdam Treaty) to 2018. They comprise twenty-one regulations, two directives and one decision; see Commission, Compendium of European Union Legislation on Judicial Cooperation in Civil and Commercial Matters (2017), https://e-justice.europa.eu/content_ejn_s_publications-287-en.do?init=true. Only two relate in full to a procedural right, but they are limited to cross-border situations and the level of protection is rather modest: Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes [2003] OJ L26/41; Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3. See ‘European Parliament resolution of 12 September 2017 on the implementation of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (the “Mediation Directive”) (2016/2066(INI)’ P8_TA(2017)0321. Some rules relating to general civil proceedings were, however, adopted on the basis of Treaty provisions on substantive law: eg Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights [2004] OJ L157/45; Directive 2009/22/EC of 23 April 2009 on

Procedural Rights of Parties to Civil Proceedings

without harmonising the procedural rights of parties in domestic proceedings. This contrasts with cooperation in criminal matters, where the EU has recently adopted several acts ensuring minimal fair trial standards across the EU to be applied in all criminal proceedings, not only those with a cross-border element.12 But even in matters with an indisputable cross-border dimension – jurisdiction and recognition of judgments – it is only recently that EU legislative activity in the field of procedural rights has started emerging. The EU does not regulate particular rights horizontally, but simply guarantees the protection of some aspects of them in the context of a given act, thereby potentially forging links between them.13 The main source of procedural rights in this field is thus the Charter (together with the ECHR), and the main player the CJEU. A new chapter in the story of EU procedural rights could have begun, as in 2017 the European Parliament called on the Commission to make a proposal for a horizontal directive on common minimum standards of civil procedure.14 However, the Commission did not follow this suggestion, so it is unlikely that such an act will be adopted in the near future. Before analysing the current situation of procedural rights in civil matters, some mention should be made of the uncertainty surrounding the precise meaning of the expression ‘procedural rights’.15 Should it cover any entitlement of a party in civil proceedings (concerning, for example, service, translation the right of

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injunctions for the protection of consumers’ interests [2009] OJ L110/30; Directive 2014/104/ EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the EU [2014] OJ L349/1. For a comprehensive analysis of those acts, see Chapter 13. See Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1 (Brussels I bis) art 28 (referring to Regulation (EC) 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 [2007] OJ L324/79 (Service Regulation) art 19. ‘European Parliament resolution of 4 July 2017 with recommendations to the Commission on common minimum standards of civil procedure in the European Union (2015/2084(INL)’ [2018] OJ C334/39 (EP Resolution on Common Minimum Standards of Civil Procedure), including, as an annex, ‘Directive of the European Parliament and the Council on common minimum standards of civil procedure in the European Union’ (Proposed Directive). The proposal was based to a large extent on the work of the European Law Institute, undertaken in collaboration with UNIDROIT. For a different categorisation of civil procedural rights, see R Man´ ko, ‘Europeanisation of Civil Procedure: Towards Common Minimum Standards?’ (2015) European Parliamentary Research Service In-Depth Analysis PE 559.499; B Hess, ‘Harmonized Rules and Minimum Standards in the European Law of Civil Procedure’ (2016) In-Depth Analysis PE 556.971 – both accessible at www.europarl.europa.eu/supporting-analyses. For further analysis of procedural rights, see also B Hess and X Kramer (eds), From Common Rules to Best Practices in European Civil Procedure (Hart/Nomos 2017) pt I, 43–180.

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appeal)? Or should it rather be limited to the fundamental rights of the parties stemming from the right to a fair trial protected by Article 47 of the Charter? According to Dworkin’s classification, the latter would be the correct approach, as procedural rights are principles that ‘state a reason that argues in one direction’ – or, rather, two directions, as the claimant’s right of access to a court and the defendant’s right of defence often go in opposite directions in civil proceedings. But procedural rights could be understood more widely as also including standards. The legislator, when adopting a regulation, or a court, when interpreting it, must strike a balance between the parties’ rights (and sometimes other interests). They thus determine the standard of protection a given right enjoys in a given situation.16 For the purposes of this chapter, procedural rights will be understood as comprising both fundamental procedural rights (mainly those listed in Article 47 of Charter) and the standards (reflecting a balance between the claimant’s and the defendant’s rights in a particular situation) established by the EU legislator and the CJEU. The aim of the chapter is not to list the various rights conferred on parties by the EU regulations, but rather to assess whether the EU legislators and judiciary achieve the right balance between two fundamental procedural rights stemming from the right to a fair trial: the right of access to a court and the right of defence.17 The chapter will first describe the multiple sources of protection of the right to a fair trial in the EU and how they interrelate with each other. It will then briefly discuss18 the primary source of this right in EU law – Article 47 of the Charter (together with Article 6 ECHR) – and its reduced application in the AFSJ due to presumptions made by the CJEU and the ECtHR. The chapter will then turn to the secondary law through which the EU creates a European judicial area in civil cases. After describing the EU competences in the field, it will analyse how rights and interests are balanced in regulations and case law. One of the by-products of the balancing operated by the CJEU is an obligation on the defendant to use all the remedies in the state of origin. To conclude, an assessment will be made of the current state of EU procedural rights.

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18

The notion of a standard (often referred to as a ‘common minimum standard’) can be understood in a variety of ways; see M Requejo Isidro, ‘Do We Need Harmonisation to Achieve Harmonious Cooperation’ in B Hess and X Kramer (eds), From Common Rules to Best Practices in European Civil Procedure (Hart/Nomos 2017) 117 (‘Still, “minimum” has proved to be a flexible notion, covering sometimes only basic objectives, sometimes objectives and standards, and sometimes objectives and standards and technical rules.’). In light of this vagueness, it has been suggested that the expression ‘procedural minimum standards’ should be avoided altogether; see Hess (n 15) 9. Their content has been well analysed in the literature; see James J Fawcett, Máire Ní Shúilleabháin and Sangeeta Shah, Human Rights and Private International Law (OUP 2016). For an analysis in greater depth, see Chapter 11.

Procedural Rights of Parties to Civil Proceedings

12.2 Multi-Source Protection of the Right to a Fair Trial in the EU There are potentially three sources of procedural rights in civil cases – national, conventional and EU – but they all have common roots. As the CJEU has observed, effective judicial protection ‘is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950’.19 Despite their similarities, the multitude of legal sources can raise questions about the interrelations between them, especially where there are divergences. The legislators (national and the EU’s), when adopting laws, and courts (national, ECtHR and CJEU), when adjudicating cases, balance the claimant’s and the defendant’s rights as part of the process of establishing certain standards. These standards do not necessarily have to be the same at each of the three levels – national, conventional and EU. For the purposes of this chapter, it is enough to mention two rules pointing to a hierarchy in these standards. Firstly, there is no doubt that the ECHR establishes a minimum standard of protection of fundamental rights in Europe. This means that neither national nor EU20 standards can be lower, but also that their legislators or courts can establish higher standards if they wish.21 This seemingly unquestionable principle is hardly tested in relation to the AFSJ, however, due to two presumptions on the part of Europe’s two highest courts – one stemming from mutual trust (CJEU) and the other from the objective of supporting European integration, the so-called Bosphorus presumption (ECtHR). The second rule relating to the hierarchy of three European standards, presented for the first time in the Melloni case, is not so evident or so easily acceptable. According to the CJEU, if EU law completely harmonises (ie unifies) the standard of protection of a given right, national laws, including constitutions, cannot increase this protection as it would compromise ‘the primacy, unity and effectiveness of EU law’.22 This position extends the primacy of EU law to the sphere of fundamental rights, but it is difficult to reconcile with the wording of Article 53 of the Charter,

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See Case C-279/09 DEB EU:C:2010:811, para 29. The EU is not party to the ECHR, but its legal acts can be indirectly scrutinised by scrutinising the actions of Member States; see Bosphorus Hava Yolları Turizm ve Ticaret Anonim S‚irketi v Ireland App no 45036/98 (ECtHR, 30 June 2005); see also Section 12.3.2. Charter, art 52(3) (‘This provision shall not prevent Union law providing more extensive protection.’). Case C-399/11 Melloni EU:C:2013:107, para 60. Some constitutional courts do not share the CJEU’s view on this point and consider the protection of core fundamental rights as an essential threshold for European secondary law; see Polish Constitutional Court, 16 November 2011, SK 45/09 Supronowicz, https://trybunal.gov.pl/fileadmin/content/omowienia/SK_45_09_EN.pdf; German Federal Court, 15 December 2015, 2 BvR 2735/14, www.bundesverfassungsgericht.de/ SharedDocs/Pressemitteilungen/EN/2016/bvg16-004.html.

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which states that nothing in the Charter shall be interpreted as restricting rights and freedoms as recognised by, inter alia, the Member States’ constitutions. These principles will not be described in detail; in the context of this chapter, suffice to say that, as things currently stand, the EU can establish the standard, which is at least equivalent to that set in the ECHR (even if in practice the level of protection accorded by the ECtHR and the CJEU is sometimes lower) and does not necessarily have to take into account all standards set in national constitutions.

12.3 12.3.1

Sources of EU Procedural Rights Primary Law

In the first place, procedural rights are protected by Article 4723 of the Charter,24 which encompasses six25 main rights entitling parties to access to a court, a fair hearing, an independent and impartial tribunal established by law, a public hearing and judgment, a judgment within a reasonable time and the execution of a court judgment.26 Insofar as the rights contained in Article 47 of the Charter correspond to those guaranteed by the ECHR, ‘the meaning and scope of those rights shall be the same as those laid down by the said Convention’.27 This means not only the letter of the Convention but also its interpretation in ECtHR case law.28 The second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the ECHR29 and the first paragraph to Article 13 of the Convention. Article 47 should also be interpreted in harmony with the constitutional traditions common to the Member States.30

12.3.2 The Importance of the ECHR for EU Procedural Rights The ECHR is important to EU procedural rights for two reasons. Firstly, as mentioned above, Charter rights must be interpreted in accordance with the corresponding ECHR rights. Secondly, the rights enshrined in Articles 6 and 13 ECHR must be respected by the EU legislator when setting up mechanisms for the EU. The EU is not a party to the ECHR, but the ECtHR can indirectly assess the conformity of EU mechanisms with Article 6 ECHR when reviewing their application

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24 25 26 28

According to Article 6(3) TEU, the general principle of effective judicial protection can also come into play. For a comparison of the general principle of effective protection with Article 47 of the Charter, see S Prechal, ‘The Court of Justice and Effective Judicial Protection: What Has the Charter Changed?’ in C Paulussen and others (eds), Fundamental Rights in International and European Law (TMC Asser Press 2015). TEU art 6(1) (the Charter has ‘the same legal value as the Treaties’). Other taxonomies are possible; see eg Man´ ko (n 15) 5, listing seven rights. 27 Fawcett, Ní Shúilleabháin and Shah (n 17) 57–82. Charter, art 52(3). 29 30 DEB (n 19) para 35. ibid para 32. Charter, art 52(4).

Procedural Rights of Parties to Civil Proceedings

by Member States. However, such review is not exhaustive, given that there is a presumption of equivalent protection, which the ECtHR first set forth in its Bosphorus judgment. Adopted in the interest of international cooperation, this presumption applies ‘where the domestic authorities give effect to European Union law and have no discretion in that regard’. In such a case, the ECtHR ‘reduces the intensity of its supervisory role’ and verifies only whether the protection of the rights guaranteed by the ECHR is manifestly deficient in the particular case. Its application to the EU policies founded on mutual trust was recently confirmed in the Avotin‚š judgment.31 Another limitation on the efficient protection of fundamental rights stems from the CJEU’s principle of mutual trust, which ‘requires, particularly with regard to the area of freedom, security and justice, each of [the Member] States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’.32 Accordingly, save in exceptional cases, Member States are not allowed to ‘check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU’.33 In Avotin‚š, the ECtHR warned in abstracto (with no consequences for the case) that the mutual trust presumption as described by the CJEU in Opinion 2/13 may in practice run counter to the standard protected by the ECHR, according to which ‘the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin’.34 But it did not develop this issue and observed that the existence of two presumptions ‘results, paradoxically, in a twofold limitation of the domestic court’s review of the observance of fundamental rights, due to the combined effect of the presumption on which mutual recognition is founded and the Bosphorus presumption’.35

12.3.3 Secondary Law 12.3.3.1

EU Competence to Regulate Procedural Rights in Civil Cases

As mentioned earlier, Article 81 TFEU gives the EU competence to legislate to ‘develop judicial cooperation in civil matters having cross-border implications,

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Avotin‚š v Latvia App no 17502/07 (ECtHR, 23 May 2016) para 115 (‘[W]here the domestic authorities give effect to European Union law and have no discretion in that regard, the presumption of equivalent protection set forth in the Bosphorus judgment is applicable. This is the case where the mutual-recognition mechanisms require the court to presume that the observance of fundamental rights by another Member State has been sufficient.’); see also Michaud v France App no 12323/11 (ECtHR, 6 December 2012) para 104. 33 Opinion 2/13 EU:C:2014:2454, para 191. ibid para 192. 35 Avotin‚š v Latvia (n 31) para 114. ibid para 115.

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based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases’. The requirement of a cross-border aspect is interpreted restrictively.36 It is commonly thought that, according to Article 81 TFEU, the EU does not have competence to adopt rules on purely domestic civil proceedings or on those parts of civil proceedings that do not relate to the exercise of international jurisdiction, cross-border service or the recognition of judgments. The impact of EU law on general proceedings in civil cases is thus currently limited. In most cases, the EU does not harmonise or replace domestic civil procedures but simply establishes additional uniform rules, which are applied exclusively in cross-border cases.37 Some EU acts provide for non-mandatory proceedings which a court (evidence38), a claimant or even a Member State are free to choose.39 The self-restraint of the EU40 in the field of harmonising civil procedures does not necessarily derive from the wording of Article 81 TFEU, however. It is true that Article 81 TFEU is formulated differently from Article 82 TFEU on criminal cases, which expressly mentions ‘minimum rules’.41 But interpretations of Article 81 that would allow the EU to legislate generally on civil proceedings are not excluded. In the sentence ‘the EU shall develop judicial cooperation in civil matters having cross-border implications’, the word ‘cooperation’ need not be interpreted literally as meaning aid, assistance, collaboration between courts or judges. A combined reading of Article 3 TEU and Articles 67 and 81 TFEU seems to suggest that the EU is required to develop an area of justice in civil matters having cross-border implications, based on the principle of mutual recognition of judgments. Developing such an area may require harmonisation. The matters listed in paragraph 2 of Article 81 TFEU as falling within the scope of EU competence could provide a basis for the horizontal harmonisation of some domestic civil procedural rights.

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Hess (n 15) 5 (referring to ‘an extremely restricted interpretation of the criterion “cross-border”’ as a result of which ‘[o]nly those situations in which both parties are domiciled in different EU Member States qualify as “cross-border”’). Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure [2006] OJ L399/1, recital (10); Case C-292/10 Visser EU:C:2012:142, para 44; Service Regulation (n 13); Council Regulation (EC) 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001] OJ L174/1. Case C-170/11 Lippens EU:C:2012:540, para 28; Case C-332/11 ProRail BV EU:C:2013:87, para 42. Regulation (EC) 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/15, recital (19). Or maybe rather the reluctance of Member States. The Commission was open to the idea of EU legislation in general domestic civil procedure in its (Proposal for a Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure’ COM (2005) 87, which was withdrawn following resistance from Member States. Article 82(2) TFEU expressly empowers the EU to establish minimum rules. For an analysis of EU competences in both the criminal and civil fields and a comparison between them, see Requejo Isidro (n 16).

Procedural Rights of Parties to Civil Proceedings

It would be perfectly logical to expect that the automatic and almost unqualified recognition and enforcement of judgments in the EU (especially as EU acts do not permit enquiries into jurisdiction) presupposes a common minimum standard of protection for certain procedural rights.42 With the free movement of persons and capital, cases that begin as purely domestic may require cross-border enforcement at a later stage. Even if, for years, mutual recognition was possible without harmonisation, mutual trust in national and ECHR protection may in themselves no longer be sufficient, now that the European judicial area has matured. Those speculations do not find support in CJEU case law, however. In a recent judgment the CJEU stated clearly that Article 81(2) TFEU concerns ‘exclusively civil matters having cross-border implications’.43 A surprising solution has been presented by the European Parliament in its proposal for a directive establishing common minimum standards of civil procedure in the EU. According to the Proposed Directive, the expression ‘cross-border implications’ covers not only disputes in which at least one party is domiciled or habitually resident in a Member State other than that of the court seised with the case,44 or in which there are other connecting factors (like place of performance of the contract in other Member State)45 but also disputes in which “both parties are domiciled in the same Member State as that of the court or tribunal seised, provided that the disputed matter falls within the scope of Union law”.46 The draft criticises the narrow understanding of ‘cross-border implications’ in Article 81 TFEU,47 but without widening it in a manner that is useful for the recognition of judgments. A definition of ‘cross-border implications’ that covers all matters falling within the scope of Union law is artificial and misleading, as some of the civil cases concerning matters that fall within the scope of EU law can be purely domestic (eg liability for dangerous products). It seems that the main purpose of the Proposed Directive is to create a common standard for proceedings involving EU law. However, it raises doubts as to the chosen legal basis and questions about the logic of setting standards in civil proceedings when most EU cases concern administrative proceedings. It is also hard to imagine that the standards (eg the requirement that the court fees charged in Member States for civil disputes should not be disproportionate to the value of the claim and should not render litigation impossible or excessively difficult) will be 42

43 45 47

See eg XE Kramer, ‘Cross-Border Enforcement in the EU: Mutual Trust Versus Fair Trial? Towards Principles of European Civil Procedure’ (2011) 1 International Journal of Procedural Law 202, 222 (‘It is submitted that the full abolition of exequatur without minimum standards on several crucial procedural elements is undesirable. The creation of common procedural rules will contribute to mutual trust and thus facilitate mutual recognition and enforcement.’). 44 Case C-80/19 EE EU:C:2020:569, para 34. Proposed Directive (n 14) art 3(1)(a). 46 ibid art 3(1)(b). ibid art 3(1)(c). EP Resolution on Common Minimum Standards of Civil Procedure (n 14) points 11–12.

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used only in some civil proceedings. Applying two standards – one for cases relating to EU law and one for purely domestic cases – would be very inconvenient for national judges. It is difficult also because at the start of an action it is not always clear that EU law will be applied in the case. And what about cases in which one party raises arguments based on EU law but the court decides that EU law does not apply to the case? Also, from the point of view of judicial cooperation in civil cases, the Proposed Directive does not solve the main issue – the level of protection of the right to a fair trial that is necessary to allow the mutual recognition of judgments. For example, the Proposed Directive leaves out of the scope of ‘disputes with cross-border implications’ cases that are purely domestic but lead to a judgment requiring recognition/enforcement in another Member State. For the Proposed Directive to be of any real use to the mutual recognition of judgments, a broader interpretation of Article 81 TFEU that would allow certain aspects of the right to a fair trial to be harmonised across all civil proceedings is needed. Fortunately, the European Commission did not follow the Parliament’s call, responding instead that ‘[p]rocedural standards in the European Union have already been adopted in a number of instruments, many of which are designed specifically in order to improve the free circulation of judgements while preserving the rights of the parties’. After listing those measure in different regulations, it stated that a reform of the regulations on service and evidence might be needed.48

12.3.3.2

EU Secondary Law from the Perspective of Fundamental Rights and Interests

The question arises as to how the EU strikes a balance between defendants’ and claimants’ rights in European procedures and in those aspects of domestic proceedings that are governed by EU law. One may also ask whether EU rules on the recognition and enforcement of judgments can potentially influence domestic civil proceedings. Balancing Parties’ Rights in EU-Governed Aspects of Civil Proceedings The rights of the claimant and the defendant usually go in opposite directions.49 The task of the legislator and judges is to find an appropriate balance between them.50 The establishment of a European judicial area based on mutual trust and

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Commission, ‘Follow-up to the European Parliament resolution of 4 July 2017 with recommendations to the Commission on common minimum standards of civil procedure in the European Union’ SP (2017) 539. As rightly observed in Case C-619/10 Trade Agency EU:C:2012:247, Opinion of AG Kokott, para 79 (‘The rights of the defence are at odds, in particular, with the opponent’s mirror-image procedural fundamental rights, such as its right of recourse to the courts that is guaranteed as a fundamental right and the associated right to expeditious proceedings.’). Case C-420/07 Apostolides v Orams EU:C:2009:271, para 73.

Procedural Rights of Parties to Civil Proceedings

the regulations’ objective of permitting the free movement of judgments gravitate towards the interests of claimants, which is to have access to a court and be sure that the court’s judgment will be executed.51. The EU legislator’s attention has been focused on the efficiency of mechanisms of recognition, which are seen as a necessary component of an internal market. On the other hand, defendants’ rights, and especially the right of defence that forms part of the right to a fair hearing, place limits on the efficiency of the mechanisms52 and on claimants’ rights. They are also protected by rules establishing jurisdiction in cross-border situations53 and the grounds on which recognition may be refused. The European legislator thus seeks to establish a balance between efficiency of mutual recognition of judgments that is to the benefit of creditors’ rights on the one hand and defendant’s rights of defence (and sometimes other fundamental rights) on the other hand54 In the European judicial area this balance has varied over time. It has evolved with the tightening of European integration (eg the transition from Brussels I55 to Brussels I bis56). But it also varies according to the legal act. At the moment, some regulations (incorporating an exequatur procedure) provide for a lower degree of mutual recognition, which increases the possibility for the defendant of having recognition refused,, while others (those that abolish exequatur) provide for a higher degree of mutual recognition. In general, as EU law forbids a review of jurisdiction and limits the grounds for refusing recognition, it lowers the level of protection of the right of defence compared to some national standards. Especially worrying from a defence rights perspective is the recognition of default judgments.

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Brussels Ia, recital (3) (‘The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil matters.’). See also P Kinsch, ‘Enforcement as a Fundamental Right’ [2014] Nederlands Internationaal Privaatrecht 540. In relation to the Service Regulation, see Case C-14/07Weiss EU:C:2008:26, paras 46 (‘the objectives of Regulation No 1348/2000 are to improve and expedite the transmission of documents’), 47 (‘[h]owever, those objectives cannot be attained by undermining in any way the rights of the defence’). Case C-125/79 Denilauler EU:C:1980:130, para 13; Case C-514/10 Wolf Naturprodukte EU:C:2012:367, para 27. Case C-70/15 Lebek EU:C:2016:524, para 36; Case C-325/11 Alder EU:C:2012:824, para 36. The rights of the child, protected by Article 24 of the Charter, are an example of other fundamental rights sometimes included; see Case C-4/14 Bohez EU:C:2015:563, para 58; Case C-184/14 A vB EU:C:2015:479, para 46; Man´ko (n 15) 8 (‘an appropriate balance needs to be found between the requirements of the internal market and increasing mutual trust on the one hand, and the need to respect Member States’ national identities on the other’). Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1. Brussels I bis (n 13).

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During proceedings, some procedural rights of the parties are protected through the regulation of cross-border service. The adoption of a regulation has improved the situation by comprehensively establishing the means by which judicial documents shall be transmitted and thereby precluding a procedure that considers service to be have been performed when judicial documents are simply placed in the case file (fictitious service).57 Yet, while some provisions of the Service Regulation strengthen the protection of the right of defence (eg the possibility to refuse a non-translated document58), others lower the level of protection of the right of defence compared to certain Member States’ provisions.59 A significant, but not necessarily positive, development would be the adoption of the Proposed Directive on common minimum standards. However, as noted above, its scope of application would be limited to disputes with cross-border implications (including cases in which the disputed matter falls within the scope of Union law), so it would be applied in only some civil proceedings. The catalogue of Member States’ obligations listed in the directive encompasses ensuring effective judicial protection; the fair conduct of the proceedings, including use of any appropriate remote communication technology for oral hearings; the availability of provisional measures to preserve factual or legal evidence; procedural efficiency; the drafting of decisions with sufficiently detailed reasoning; the establishment of general principles for conducting proceedings; the availability of effective means of presenting, obtaining and preserving evidence; the possibility for the court to appoint experts at any time; the application of court fees in civil disputes that are not disproportionate to the value of the claim and do not render litigation impossible or excessively difficult; the awarding of costs against the unsuccessful party; the availability of legal aid; and the introduction of restrictions on the funding of legal actions by private third parties. In addition, there are provisions on the availability of mediation, the service of documents, the right to a lawyer, access to information, interpretation and the translation of essential documents. Member States must also ensure that the parties to a case and their representatives conduct themselves in good faith, that proceedings are open to the public, that courts and tribunals and their judges enjoy judicial independence, and that Union law and procedures are integrated in national training activities. This catalogue is a mixture of fundamental obligations (eg the obligation to ensure judicial independence) and technical provisions (eg the possibility for parties to pay court fees by bank transfer or credit/ debit card).

57 59

Alder (n 54) paras 32, 40–42. ibid art 19.

58

Service Regulation (n 13) art 8.

Procedural Rights of Parties to Civil Proceedings

Potential Impact on General Civil Proceedings of EU Rules on Recognition and Enforcement of Judgments Can EU legal acts in the field of judicial cooperation in civil matters have an indirect influence on national proceedings that lie outside the regulation’s scope? This could occur in relation to the recognition of judgments when the protection of procedural rights in the Member State of origin can be assessed to determine whether or not recognition should be refused. This assessment can occur in the Member State of recognition as a basis for refusing recognition (in the case of acts providing for exequatur or Brussels I bis) or in the Member State that issued the judgment (in the case of acts that do away with exequatur and the possibility of refusing recognition). In the case of regulations incorporating a public policy clause, recognition can be refused if ‘such recognition is manifestly contrary to public policy in the Member State addressed,’60 which includes manifest breaches of fundamental rights. EU law thus authorises national courts to refuse the recognition of a judgment which infringes the right of defence.61 If a particular feature of procedure in one Member State (eg lack of reasons in certain judgments) were the basis on which a judgment is refused recognition in other Member States, this could potentially have an effect on domestic procedures. In the case of EU acts that do away with exequatur and, thus, any possibility of refusing recognition – Brussels II bis,62 chapter III, section 4 (return of a child and right to contact) and the regulation on the European Enforcement Order (EEO)63 – the use of these simplified and more efficient procedures is conditional upon compliance with the minimum standards64 or ‘common minimum guarantees.’65 They relate to the right to be heard or, more widely, the right of defence, methods of service and the right to an extraordinary remedy, and the failure to comply with them precludes the entering of an enforcement title (EEO Regulation) or a 60 61

62

63 64

65

eg Brussels I bis (n 13) art 45(1)(a). Case C-559/14 Meroni EU:C:2016:349, para 44 ; see also B Hess and T Pfeiffer, ‘Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law’ (2011) Study PE 453.189, www.europarl.europa.eu/RegData/etudes/ STUD/2011/453189/IPOL-JURI_ET(2011)453189_EN.pdf. Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000 [2009] OJ L347/32. Reg (EC) 805/2004 (n 39). The 1999 European Council Tampere meeting conclusions called for the abolishment of exequatur in certain cases, adding that ‘[t]his could be accompanied by the setting of minimum standards on specific aspects of civil procedural law’ (point 34). The regulations already describe minimum standards as a necessity; see Reg (EC) 805/2004 (n 39) art 1; Reg (EC) 1896/2006 (n 37) recitals (9), (19); Regulation (EC) 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure [2007] OJ L199/1, recital (31). Council, ‘Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters’ [2001] OJ C12/1, 5.

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certificate (Brussels II bis). In both cases the requirements relating to the proceedings are placed in legal acts concerning exequatur or enforcement. For example, the EU has not adopted legal rules requiring Member States to give children the opportunity to be heard during proceedings (ie no counterpart to the criminal law directive), but introduced the consequence that a judgment rendered without hearing the child cannot benefit from the quick recognition/enforcement process or, under the regular process, can be refused recognition. This way of regulating can be called ex post minimum standards and is much less effective than ex ante harmonisation of a given right. At the trial stage of civil proceedings, courts are not concerned with rules on enforcement, so these minimum standards are unlikely to have any real impact on domestic civil procedures. It would have been far more effective to adopt an EU act (in the form of a directive) specifically protecting the right to be heard or methods of service. The regulations on the European Small Claims Procedure and the EEO incorporate in the procedures minimum standards on methods of service and a review of the judgment in the Member State of origin. This is a better approach, as it requires courts to take them into account from the outset. However, although they set some EU procedural standards, they are not binding on Member States and are distinct from domestic procedures, so they are unlikely to have any influence on other domestic civil procedures.

12.4 The Application of EU Secondary Law by the CJEU and National Courts 12.4.1

Balancing Procedural Rights when Interpreting Regulations

The application and interpretation of regulations by national courts and the CJEU also requires the parties’ rights to be balanced. The CJEU recalls that Brussels I ‘seeks to ensure the free movement of judgments from Member States in civil and commercial matters by simplifying the formalities with a view to their rapid and simple recognition and enforcement’,66 but ‘that objective cannot be attained by undermining in any way the right to a fair hearing.67 Although the latter statement sounds unambiguous, an analysis of the case law reveals that the right of defence is not absolute, but may be subject to qualification within the limits set by EU law, notably compliance with the principle of proportionality.68 66 67

68

Case C-283/05 ASML EU:C:2006:787, para 23. ibid para 24; Lebek (n 54) para 34; see also Case C-112/13 A v B EU:C:2014:2195, para 51 and the cases cited there. Cases C-327/10 Hypotecˇní banka EU:C:2011:745, para 50; see also Case C-394/07 Gambazzi EU:C:2009:219, para 29; Visser (n 37) para 49; Lebek (n 54) para 37. On the influence of the ECHR proportionality test on CJEU case law, see Prechal (n 23).

Procedural Rights of Parties to Civil Proceedings

The ‘objectives of public interest’ that justify limiting the right of defence are undoubtedly the claimant’s right to efficient judicial protection (particularly ‘the objective of avoiding situations of denial of justice, which the applicant would face should it not be possible to determine the defendant’s domicile’69) or to an effective remedy before a tribunal guaranteed by Article 47. Also relevant here is ‘the need to ensure that judgments given in a Member State are, as a rule, recognised and declared enforceable automatically in another Member State.’70 These objectives are often accompanied by the requirement to ensure the full effectiveness (effet utile) of the regulations.71 The balancing of parties’ rights leads to varying outcomes. In some cases efficiency and the creditor’s rights prevail, while in others it is the defendant’s rights that gain the upper hand. The balancing of parties’ rights on a case-by-case basis is criticised in the literature for undermining the principle of legal certainty.72 The claimant’s right of access to a court prevailed, for example, in Hypotecˇní banka, in which the CJEU stated that Brussels I did not prevent the national law of a Member State from allowing proceedings to be brought against persons whose domicile was unknown.73 The right of defence similarly had to yield to ‘the need to ensure that judgments given in a Member State are, as a rule, recognised and declared enforceable automatically in another Member State’ in Lebek, in which the CJEU stated that the defendant had to apply for relief from the effects of the expiry of the period for commencing proceedings to be able to invoke Article 34(2) of Brussels I. This broad interpretation of ‘the possibility of commencing proceedings to challenge the judgment’ thus obliged the defendant to avail themselves of another procedure in order not to lose the right to be heard.74 By contrast, the right to defence prevailed in Trade Agency,75 where the claimant stated that it had not been served with the document instituting the proceedings even though the certificate annexed to the judgments (pursuant to Article 54) stated the opposite. The CJEU stated that ‘the court of the Member State in which enforcement is sought hearing the action has jurisdiction to verify that the information in that certificate is consistent with the evidence’.76 The right of defence also narrowed the definition of a judgment in Brussels I by excluding from the system of recognition and enforcement interim measures adopted ex parte and not served on the defendant.77 Further, the right of defence did not

69 70 71

72 73 75 77

Gambazzi (n 68) paras 31–33; Hypotecˇní banka (n 68) para 51; Visser (n 37) para 50. Lebek (n 54) para 48. Case C-94/14 Flight Refund EU:C:2016:148, paras 66–68; Case C-443/03 Leffler E U:C:2005:665, para 50. Kramer (n 42) 223–24; Man ´ ko (n 15) 7. 74 Hypotecˇní banka (n 68) para 55; see also Visser (n 37) para 59. Lebek (n 54). 76 Case C-619/10 Trade Agency EU:C:2012:531, paras 32–38. ibid para 46. Denilauler (n 53) para 13.

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allow the appearance of a ‘representative in absentia for a defendant upon whom the documents instituting proceedings have not been served because his place of domicile is not known’ to qualify as an appearance entered by the defendant for the purposes of Article 24 of Brussels I.78

12.4.2

Obligation on Parties to Use All Remedies in the State of Origin

The obligation to use all available remedies in the Member State of origin was introduced by Brussels I in connection with the recognition of default judgments. Today, it is more far-reaching, as the CJEU has affirmed the general obligation to use all the remedies available in the Member State of origin on various occasions when interpreting the regulations or balancing parties’ rights. This obligation is in line with the tenets of the AFSJ, the leading role attributed to the court(s) in the Member State of origin, and the policy of keeping interventions by other Member States to a minimum. Although the obligation seems reasonable where public policy clauses are at issue, it could be thought to unduly limit the right of defence when applied to the recognition of default judgments – which, ironically, is the only context in which it constitutes written law.

12.4.2.1

The Public Policy Clause

The first signs of this obligation appeared in the Gambazzi case, where an Italian court had to decide whether it would be manifestly contrary to public policy to recognise an English judgment in which the court had ruled on the applicant’s claims without hearing the defendant, who, despite having entered an appearance before the court, was excluded from the proceedings by a succession of court orders. The CJEU admitted that the right of defence – here, the right to be heard – could be limited and still remain in accordance with EU law. It asked the Italian court to assess the proportionality of the limitation by conducting a comprehensive assessment of the proceedings in the light of all the circumstances with a view to verifying: whether Mr Gambazzi had been given the opportunity to be heard before the order was made, and what legal remedies were available to him once the order had been made; whether he ‘could avail himself of procedural guarantees which gave him a genuine possibility of challenging the adopted measure’; and ‘whether Mr Gambazzi had, at that stage or at an earlier stage, the possibility of expressing his opinion on that subject and a right of appeal’. This judgment suggests (though without expressly saying so) that if the defendant had the opportunity to appeal against the orders and/or the judgment and did not use it, then the public policy clause should not be invoked.

78

A v B (n 67) paras 60–61.

Procedural Rights of Parties to Civil Proceedings

Trade Agency79 concerned the enforcement in Latvia of an English default judgment which was unreasoned. The CJEU again stated that ‘the restriction introduced by the procedural system in England and Wales is not manifestly disproportionate’ and declared that, when assessing whether it was right to invoke the public policy clause, the court should take into consideration, inter alia, ‘the remedies available to Trade Agency after the judgment was given, in order to seek its amendment or to have it set aside’.80 The obligation to use all the legal remedies made available by the law of the Member State of origin was unconditionally affirmed in Diageo Brands. The case concerned the recognition and enforcement of a Bulgarian judgment in the Netherlands. The judgment misapplied EU law and the Dutch court was considering using the public policy clause. The CJEU observed that the recognition of a judgment could be refused only if the error of law in question amounted a manifest breach of a rule of law regarded as essential in the EU legal order or of a right recognised as fundamental. It stated that the EU provision that had been misapplied in the case was not such a norm. Importantly, it added that, when determining whether there is a manifest breach of public policy, a court must be mindful of the fact that the mechanism introduced by the Brussels Regulation is based on mutual trust in the administration of justice in the EU81 and ‘must be interpreted as being based on the fundamental idea that individuals are required, in principle, to use all the legal remedies made available by the law of the Member State of origin.’82 This means that ‘save where specific circumstances make it too difficult, or impossible, to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs’.83 In 2016, the CJEU confirmed this principle in Meroni.84 The case concerned the recognition of an order that a Member State had issued without first hearing a third person whose rights were liable to be affected by that order. According to the CJEU, as third persons had a genuine opportunity to challenge the measure adopted by the court of the Member State of origin and were under an obligation to take advantage of that opportunity, there was no breach of Article 47 of the Charter that would justify invoking the public policy clause.

12.4.2.2

Judgments in Default

The right of defence in cases concerning the refusal to recognise a default judgment has evolved significantly. According to Article 27(2) of the 1968 Brussels Convention, such judgments should not be recognised ‘if the defendant was not 79 81 84

80 Trade Agency (n 75). ibid para 61. Case C-681/13 Diageo Brands EU:C:2015:471, para 63. Meroni (n 61) para 48.

82

ibid para 64.

83

ibid para 68.

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duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence’. In this connection, the CJEU has stated that ‘the proper time for the defendant to have an opportunity to defend himself is the time at which proceedings are commenced. The possibility of having recourse, at a later stage, to a legal remedy against a judgment given in default of appearance, which has already become enforceable, cannot constitute an equally effective alternative to defending the proceedings before judgment is delivered.’85 Article 34(2) of Brussels I tightened this condition by adding the phrase ‘unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so’ (repeated in Article 45(2) of Brussels I bis). More recently, the CJEU has made this restriction even stricter for the judgment debtor by stating that the words ‘when it was possible for him to do so’ extend to an application for relief from the effects of the expiry of the period for commencing proceedings when the period for bringing an ordinary challenge has expired.86 As applications for relief are not harmonised at EU level (except for some provisions in Article 19(4) of the Service Regulation), this judgment seems to significantly weaken the debtor’s right of defence. By obliging defendants to challenge judgments without affording them any guarantees (information about remedies, harmonisation of time limits for bringing a challenge), EU law significantly curtails their right to be heard.

V

Conclusions

It is no easy task to undertake a general assessment of procedural rights in civil proceedings in the AFSJ. Firstly, limiting the scope of application of EU law to cross-border cases is very restrictive. As a matter of principle, EU legislation does not concern civil proceedings, or parts thereof, that do not come within this ambit. Secondly, most EU proceedings are not mandatory. It is impossible to say that the EU establishes procedural rights or really improves the position of parties in domestic proceedings. Even for cross-border elements of proceedings there is no coherent EU approach to procedural rights. There is currently almost no horizontal harmonisation of procedural rights common to all proceedings. The main source of procedural rights is Article 47 of the Charter and the case law of the CJEU. The Luxembourg court balances the claimants’ and defendants’ rights using the proportionality test. It has also introduced the obligation for parties to use all the

85

Case C-123/91 Minalmet v Brandeis EU:C:1992:432, para 19.

86

Lebek (n 54).

Procedural Rights of Parties to Civil Proceedings

remedies available in the Member State of origin. In principle, this obligation is consistent with the logic of the European judicial area, but its application in the case of default judgments adopted without proper information about the proceedings (the Lebek case) seems to significantly restrict the right to be heard. An important question is whether it is necessary or desirable to introduce EU-wide standards in civil cases. There are several arguments against doing so: all Member States are bound by the ECHR and the Charter; mutual recognition works well in practice, without harmonisation; and a new legal act could further complicate the already complex picture of EU legislation in the field. Although the proposed directive admittedly addresses the most problematic issues related to the field – notably, the fragmentation of the regulations – it only partly addresses the challenges raised by cross-border litigation. It advances half-developed principles87 that do not significantly add to the protection afforded by the Charter’s Article 47 rights. Nor does it confer concrete entitlements on parties.. The question is whether it is worth the effort to introduce new rights with quite sophisticated but general terms. The picture of EU legislation in the field of judicial cooperation in civil matters is already complicated (multiple legal acts and interactions between them), making it difficult for Member States to correctly understand and implement it.88 Adding more requirements through another legal act could add to the complications.89 Any attempt to harmonise procedural rights would be a welcome development only if it were combined with the codification of the entire field. For the moment, the most urgent and important issue would seem to be to restore the balance between judgment creditors’ and debtors’ rights by removing the provisions requiring absolute mutual trust between courts (return of the child) and by enhancing judgment debtors’ rights in cases concerning the recognition of default judgments.

87

88

89

Man´ ko (n 15) 26 (‘The … project seems to address the regulation of civil procedure at this very level of intermediate detail, between the broadest constitutional principles (such as those found in the EU Charter or the ECHR) and the technicalities found in national laws.’). eg the byzantine rules on the return of a child resulting from the 1980 Hague Convention on the Civil Aspects on International Child Abduction and Brussels II bis, especially its Article 11(8); see A Fra¸ckowiak-Adamska, ‘No Deal Better than a Bad Deal: Child Abduction and the Brussels IIa Regulation’ in P Beaumont, and others (eds), Cross-Border Litigation in Europe (Hart 2017). The directive will not replace existing EU provisions regulating service (Service Regulation (n 13), Reg (EC) 861/2007 on small claims (n 64), Reg (EC) 1896/2006 on the European payment order (n 37)), legal representation (Reg (EC) 1896/2006 on the European payment order (n 37), Reg (EC) 861/2007 on small claims (n 64), Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters [2014] OJ L189/59) or legal aid (Dir 2002/8/EC (n 10)).

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PART IV Judicial Cooperation in Criminal Matters and Police Cooperation

13

Mutual Recognition and Fundamental Rights in EU Criminal Law VALSAMIS MITSILEGAS

13.1 Introduction The application of the principle of mutual recognition in the field of EU criminal law has propelled European integration in criminal matters. The adoption of a series of mutual recognition measures has resulted in a system of interstate cooperation that streamlines formal requirements for the sake of speed, requiring a high level of presumed mutual trust. Nonetheless, the practice of mutual recognition in EU criminal law, particularly with regard to its emblematic framework decision on the European arrest warrant,1 has demonstrated that presuming and claiming mutual trust in a field characterised by both a low level of EU-wide harmonisation and significant fundamental rights implications has not been straightforward or uncomplicated. The aim of this chapter is to cast light on the interplay between mutual recognition and fundamental rights in this particular context by examining the extent to which fundamental rights can limit or facilitate recognition. The chapter will begin by placing the application of the principle of mutual recognition within the context of the objective of effective interstate cooperation in criminal matters by focusing on the framework decision on the European arrest warrant. The chapter will then examine the extent to which fundamental rights have emerged as a limit on automatic mutual recognition both in secondary EU law and in the case law of the CJEU. Then it will look at the extent to which harmonisation of fundamental rights in EU secondary law (and in particular harmonisation in the field of defence rights) may provide a basis for enhanced mutual trust and thus facilitate mutual recognition in criminal matters. In this manner, the chapter will assess the extent to which EU law has moved from ‘blind’ to ‘earned’ trust in the area of criminal justice.

1

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1.

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13.2 The Relationship between Mutual Trust and Fundamental Rights in Third Pillar Mutual Recognition: The Case of the European Arrest Warrant In order to understand the relationship between mutual recognition, mutual trust and fundamental rights in the area of EU criminal justice, it is necessary to cast light on the very design of the Area of Freedom, Security and Justice (AFSJ).2 While a key feature in the development of the AFSJ is the abolition of internal borders between Member States and thus the creation of a single European area where freedom of movement is secured, the resulting unified area of movement is not accompanied by a unified area of law. The law remains territorial, with Member States retaining their sovereignty to a great extent, especially in the field of law enforcement. A key challenge for European integration in the field has thus been how to allow national legal systems to interact in the borderless AFSJ. Member States have so far declined unification of law in the EU criminal justice area. The focus has instead largely been on coordination among Member State authorities in order to compensate for the abolition of internal border controls by extending national enforcement capacity throughout the AFSJ. Under this compensatory logic, the ease of movement entailed by the abolition of internal border controls has led to calls for similar simplification of interstate cooperation via automaticity, in order to reduce or eliminate response time. Following this logic, the construction of the AFSJ without internal frontiers intensifies the need for, and justifies automaticity in, interstate cooperation.3 Automaticity in interstate cooperation implies not only that a national decision will be enforced beyond the issuing Member State’s territory by authorities in other EU Member States in the AFSJ, but also that the authority asked to enforce the decision will not challenge it and will have extremely limited grounds – if any at all – for refusing to cooperate. The method chosen to implement this notion of automaticity has been the application of the principle of mutual recognition in the field of judicial cooperation in criminal matters. Mutual recognition is attractive to Member States that resist further harmonisation or unification in European criminal law because it is thought to enhance interstate cooperation in criminal matters without forcing Member States to change national laws to comply with EU harmonisation

2

3

See V Mitsilegas, ‘Conceptualising Mutual Trust in European Criminal Law: The Evolving Relationship between Legal Pluralism and Rights-Based Justice in the European Union’ in E Brouwer and D Gerard (eds), ‘Mapping Mutual Trust: Understanding and Framing the Role of Mutual Trust in EU Law’ (2016) EUI Max Weber Working Paper MWP 2016/13. V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31 YEL 319.

Mutual Recognition, Fundamental Rights and Criminal Law

requirements.4 Mutual recognition creates extraterritoriality,5 in the sense that the will of an authority in one Member State can be enforced beyond its legal borders in a unified AFSJ. The acceptance of such extraterritoriality requires a high level of mutual trust between the authorities that take part in the system. Such trust is premised upon the assumption that membership of the European Union means that the issuing Member State is fully compliant with fundamental rights norms. The objective of high-level integration among EU Member States has justified automaticity in interstate cooperation and led to the adoption of a series of EU instruments. These instruments go beyond the pre-existing forms of cooperation set out under public international law, which have traditionally afforded a greater margin for scrutiny of requests for cooperation. Underlying the new instruments is the presumption that membership of the European Union is sufficient proof of full respect of the fundamental rights laid out in the ECHR. This presumption provides the justification for mutual trust, which, in turn, justifies automaticity in interstate cooperation in the area of criminal justice. Framed in this manner, mutual recognition has emerged as the motor of European integration in criminal matters under the third pillar. The European Council’s 2001 adoption of a detailed programme of measures for mutual recognition of decisions in criminal matters6 has been followed by a wide range of framework decisions. These decisions put in place a comprehensive system of mutual recognition in the field of criminal justice, which extends from pretrial (recognition of arrest warrants7, evidence warrants8, freezing orders9 and decisions on bail10) to post-trial (recognition of confiscation orders11, financial

4

5

6

7 8

9

10

11

V Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 CMLRev 1277. K Nicolaidis and G Shaffer, ‘Transnational Mutual Recognition Regimes: Governance without Global Government’ (2005) 68 Law and Contemporary Problems 263; K Nicolaidis, ‘Trusting the Poles? Constructing Europe through Mutual Recognition’ (2007) 14 Journal of European Public Policy 682. Council, ‘Programme of measures to implement the principle of mutual recognition of decisions in criminal matters’ [2001] OJ C12/10. EAW FD 2002/584/JHA (n 1). Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L350/72. Post-Lisbon replaced by the Directive on the European Investigation Order, see below. Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [2003] OJ L196/45. Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJ L294/20. Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders [2006] OJ L328/59.

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penalties12, probation orders13and the transfer of sentenced persons14). This system of mutual recognition was completed with a framework decision on judgments in absentia, adopted before the Treaty of Lisbon took effect.15 That framework decision amended a number of the preceding framework decisions to specify when recognition of a judgment could or could not be refused in such cases. The priorities of the application of the principle of mutual recognition in criminal matters are automaticity, speed and the execution of judicial decisions with a minimum of formality. Based on mutual trust, the system severely limits the grounds for refusing the recognition and execution of a judicial decision or questioning the legal system of the Member State of the issuing authority.16 This is relevant because automaticity has presented a number of challenges, most notably with regard to the protection of the fundamental rights of affected individuals. In particular, fundamental rights challenges have arisen in the context of the framework decision on the European arrest warrant (EAW FD), which is emblematic of the application of the principle of mutual recognition in the field of criminal law. It was the first measure to be adopted in the field and remains the main mutual recognition measure fully implemented in detail at the time of writing. The EAW FD introduced automaticity in the operation of interstate cooperation at three levels. Firstly, cooperation must take place within a limited time frame, under strict deadlines and on the basis of a pro forma form annexed to the framework decision – this means that in practice few questions can be asked by the executing authority beyond what has been included in the form.17 Secondly, the executing authority is not allowed to verify the existence of dual criminality for

12

13

14

15

16 17

Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [2005] L76/16; see now Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders [2018] OJ L303/1. Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [2008] OJ L337/102. Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L327/27. Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/24. V Mitsilegas, EU Criminal Law (Hart 2009) ch 3. See EAW FD 2002/584/JHA (n 1) arts 15, 17, 23. The Court confirmed the limited role of the executing authority in examining the content of the European arrest warrant in Case C-261/09 Gaetano Mantello EU:C:2010:683.

Mutual Recognition, Fundamental Rights and Criminal Law

thirty-two categories of offences listed in the framework decision18 – this means that the executing state may be asked to deploy its law enforcement mechanism, and arrest and surrender an individual, for conduct that is not an offence under its domestic law.19 The third level of automaticity arises from the inclusion of limited grounds for refusing to recognise and execute an EAW under the framework decision. The EAW FD includes only three, mainly procedural, mandatory grounds for refusal20 which are complemented by a series of optional grounds for refusal21 and provisions on guarantees underpinning the surrender process.22 Non-compliance with fundamental rights is not, however, included as a ground for refusing to execute an EAW. Rather, the general provision of Article 1(3) includes the general statement that ‘this Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the TEU’.23 This legislative choice reflects the view of Member States that judicial cooperation can take place on the basis of a high level of mutual trust in their criminal justice systems. At the time, however, commentators criticised it as ‘a step too far too soon’ and pointed out that EU Member States were not immune from convictions by the Strasbourg Court for breaches of the ECHR.24

13.3 Addressing Fundamental Rights Concerns in Legislation The maximalist approach to mutual recognition adopted in the EAW FD has led European and national legislatures to seek ways of accommodating fundamental rights considerations within the operation of the EU system of mutual recognition.25 The resulting legislation has addressed fundamental rights concerns in three ways: via parallel mutual recognition instruments mitigating the adverse impact of automaticity on fundamental rights when executing mutual recognition requests; by allowing recognition and execution to be refused on grounds related to fundamental rights; and via proportionality requirements. Parallel mutual recognition measures address fundamental rights concerns regarding the mutual recognition of bail decisions (the European supervision order) by enabling an 18 19 20 23 24

25

EAW FD 2002/584/JHA (n 1) art 2(2). See the Court’s ruling in Case C-303/05 Advocaten voor de Wereld EU:C:2007:261. 21 22 EAW FD 2002/584/JHA (n 1) art 3. ibid art 4. ibid arts 5, 27, 28. See also ibid recital (12). S Alegre and M Leaf, ‘Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – The European Arrest Warrant’ (2004) 10 ELJ 200. See V Mitsilegas, ‘Mutual Recognition, Mutual Trust and Fundamental Rights after Lisbon’ in V Mitsilegas, M Bergström and T. Konstadinides (eds), Research Handbook on EU Criminal Law (Edward Elgar 2016), on which this section is based.

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individual surrendered under an EAW to spend the pre-trial period under bail conditions in the executing, rather than the issuing, Member State.26 Regarding the use of fundamental rights as a limit on mutual recognition, a number of Member States have expressly added as a ground for refusal in their laws implementing the EAW FD a surrender’s non-compliance with fundamental rights.27 Moreover, the post-Lisbon directive on the European Investigation Order (EIO)28 expressly includes non-compliance with fundamental rights as a ground for refusing to recognise and execute an EIO.29 Following the case law of the Strasbourg and Luxembourg Courts in the field of asylum law, the preamble to the directive affirms that the presumption of compliance by Member States with fundamental rights is rebuttable.30 The third way in which legislators have addressed fundamental rights concerns in the operation of mutual recognition has been by inserting in secondary law a requirement to check proportionality. The focus on proportionality was triggered by concerns over the extensive scope of the EAW FD combined with the abolition of the requirement to verify dual criminality. This combination has led to EAWs being issued for offences considered minor or trivial in the executing Member State, causing considerable pressure on the criminal justice systems of executing Member States and disproportionate results for the requested individuals.31 The need to address these proportionality concerns was acknowledged by the European Commission in its last report on the implementation of the framework decision.32 The prevailing view has thus far favoured checking proportionality in the issuing rather than the executing Member State. This is the interpretative

26

27

28

29

30 31

32

The use of the European supervision order as a means of addressing lengthy periods of pre-trial detention following the execution of an EAW was discussed and promoted in Sir Scott Baker’s ‘Review of the United Kingdom’s Extradition Arrangements’ presented to the Home Secretary on 30 September 2011. On the implementation of EAW FD, see V Mitsilegas, ‘The Area of Freedom, Security and Justice from Amsterdam to Lisbon: Challenges of Implementation, Constitutionality and Fundamental Rights’ in J Laffranque (ed), The Area of Freedom, Security and Justice, Including Information Society Issues: Reports of the XXV FIDE Congress Tallinn 2012 (Tartu University Press 2012) vol 3 and national reports included therein. Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1. Article 11(1)(f) approves such action where there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing Member State’s obligations in accordance with Article 6 TEU and the Charter. Dir 2014/41/EU (n 28) recital (19). See Joint Committee on Human Rights, The Human Rights Implications of UK Extradition Policy (2010–12, HL 156, HC 767) 40–43. Commission, ‘Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2011) 175 final, 8.

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guidance given in the revised version of the European handbook’s instructions on issuing an EAW.33 This approach has also been adopted by certain Member States in their implementation of EAW obligations.34 The requirement to introduce a proportionality check in the issuing Member State has also been introduced at EU level in the directive on the EIO. This directive states that the issuing authority may issue an EIO only where the issuing of the latter is necessary and proportionate and where the investigative measures indicated in the EIO could have been ordered under the same conditions in a similar domestic case.35 The directive thus links proportionality with the condition that the authorities of the issuing state avoid abuse of law in the form of ‘fishing expeditions’. The United Kingdom has taken a step further with regard to the treatment of proportionality as a limit to mutual recognition. In its latest version of the EAW implementing legislation (the Extradition Act 2003), the UK has treated non-compliance with proportionality as a ground for refusing to execute an EAW (and not merely as a requirement to be met in the issuing Member State).36 The amended provisions provide an exhaustive list of matters for the judge to take into account when ruling on proportionality,37 and thus far English judges have interpreted these matters restrictively.38 Their restrictive approach notwithstanding, the amendment of the Extradition Act to expressly include breach of proportionality as a ground for refusing to execute an EAW poses a significant challenge to the system of mutual recognition based on mutual trust, as it effectively adds to the EAW system a new – and potentially far-reaching – ground for refusal. The approach taken in the Extradition Act diverges from current EU policy and legislative practice, as well as from the view of the UK Supreme Court,39 which is to leave the task of checking proportionality to the issuing Member State. The Extradition Act thus

33

34

35 36

37

38

39

For the latest version, see Commission, ‘Handbook on how to issue and execute a European arrest warrant’ (Notice) C (2017) 6389 final, s 2.4. A number of changes to the Polish Code of Criminal Procedure came into force on 1 July 2015. They included an amendment to Article 607b, which now states that an arrest warrant will not be issued if it is not in the interests of the administration of justice. This reference to the interests of the administration of justice can be considered tantamount to a proportionality test. I am grateful to Celina Nowak for providing me with the relevant information on Polish law. Dir 2014/41/EU (n 28) arts 6(1)(a) and (b) respectively. The Anti-Social Behaviour, Crime and Policing Act 2014, s 157 amended the Extradition Act 2003, s 21A by making lack of proportionality a ground for refusal (s 21A(1)(b)). Extradition Act 2003, s 21A(2). These matters are: the seriousness of the conduct alleged to constitute the extradition offence; the penalty likely to be imposed if the individual is found guilty of the extradition offence; and the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition sought (s 21(A)(3)). See Miraszewski v Poland [2014] EWHC 4261 (Admin); Celinski v Poland [2015] EWHC 1274 (Admin). See the Assange ruling of the UK Supreme Court [2012] UKSC 22 [90] (Phillips LJ).

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places further limits on mutual trust across EU Member States. It remains to be seen how the European judiciary will deal with the Extradition Act’s approach to proportionality should it come up in litigation.

13.4 The Relationship between Mutual Recognition, Mutual Trust and Fundamental Rights before the European Judiciary In its early case law, the CJEU demonstrated strong support for the system established by the EAW FD.40 The entry into force of the Lisbon Treaty, which brought the third pillar into the scope of EU law, gave EU criminal law and the Charter constitutional rank,41 raising hopes that the CJEU would modify its stance regarding fundamental rights scrutiny in the operation of the EAW. These hopes were further fed by CJEU case law in the field of mutual recognition in asylum law. In the case of NS, the CJEU ruled that a transfer under the Dublin Regulation would be incompatible with fundamental rights ‘if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State’.42 The CJEU’s approach constituted a paradigmatic shift on mutual recognition based on automaticity. This is because the Court expressly stated that the presumption of compliance with fundamental rights in the receiving Member State is rebuttable,43 and placed specific duties on sending authorities to verify fundamental rights compliance.44 It has been argued that the paradigm change in the operation of mutual trust carried out by NS could also be applicable in transfers of individuals under the EAW, which would thus establish a horizontal benchmark for fundamental rights protection across the AFSJ.45 Yet, in its early leading post-Lisbon cases on the EAW, and notwithstanding parallel developments in post-Lisbon EU criminal law,46 the CJEU appeared reluctant to assert such a benchmark. In Radu,47 despite

40 41

42 43 46

47

Mitsilegas, EU Criminal Law (n 16) ch 3. V Mitsilegas, EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe (Hart 2016). Case C-411/10 NS v Secretary of State for the Home Department EU:C:2011:865, para 85. 44 45 ibid para 104. ibid para 94. Mitsilegas, ‘The Limits of Mutual Trust’ (n 3). The post-Lisbon mutual recognition directive on the European Investigation Order introduced the possibility of refusing recognition or execution where ‘there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter’ (Dir 2014/41/ EU (n 28) art 11(1)(f)). Case C-396/11 Radu EU:C:2013:39.

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the attempt by Advocate General Sharpston to bring the protection of fundamental rights to the fore (notably by advancing arguments based on proportionality),48 the CJEU continued to focus on the effectiveness of the EAW. Radu was followed by Melloni,49 where the CJEU found that Member States cannot refuse to execute an EAW on the grounds that the issuing country has a lower level of fundamental rights protection than the receiving country, if the level provided by the receiving country’s national constitution is above the level of protection established by the Charter. In casting doubt on the uniformity of the standard of protection of fundamental rights as defined by the framework decision, Member States undermine the principles of mutual trust and recognition that the decision purports to sustain and therefore compromise its efficacy.50 Melloni was followed by the questionable elevation of mutual trust to a fundamental principle of EU law in Opinion 2/13.51 From a constitutional law perspective, the CJEU’s reasoning in both Melloni and Opinion 2/13 can be interpreted as a clear indication to the Strasbourg Court and to national constitutional courts of its determination to uphold the primacy and autonomy of EU law.52 Yet the implications of the CJEU’s reasoning on meaningful scrutiny of fundamental rights during the process of mutual recognition are profound. The CJEU elevated the inherently subjective concept of mutual trust to a fundamental principle of EU law53, adopting a version of mutual trust, the presumption of which can be questioned only in exceptional cases. However, in defending the primacy and autonomy of EU law, the CJEU has undermined the credibility of the EAW system in the eyes of national courts and the Strasbourg Court. The CJEU rulings increasingly appeared at odds with the Strasbourg Court’s approach, which is centred on the individualised assessment of fundamental rights violations. This discrepancy was evident in the case of Tarakhel.54 Involving Dublin transfers from Switzerland to Italy, the ECtHR found a breach of the ECHR with regard to specific individuals even in a case where generalised systemic deficiencies in the receiving state had not been ascertained.55 The CJEU’s approach compared to fundamental rights protections enshrined in national constitutions has 48 51

52

53 54 55

49 50 ibid esp para 103. Case C-399/11 Melloni EU:C:2013:107. ibid para 63. Opinion 2/13 of the Court EU:C:2014:2454, paras 191–92. For a critique, see V Mitsilegas, ‘The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe’s Area of Criminal Justice’ (2015) 6 New Journal of European Criminal Law 460. See also Opinion 2/13, para 188, where the CJEU recalls the Melloni requirement to uphold ‘the primacy, unity and effectiveness of EU law’. Mitsilegas ‘The Symbiotic Relationship’ (n 51). Tarakhel v Switzerland App no 29217/12 (ECtHR, 4 November 2014). ibid para 115 (emphasis added). As Halberstam has noted, Tarakhel was a strong warning signal to Luxembourg that the CJEU’s standard ought to conform either in words or in practice to what Strasbourg demands of the Dublin system to avoid violation of the ECHR. See D Halberstam, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ (2015) University of Michigan Public Law Research Paper 439, 27.

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also sounded alarms in national constitutional courts. The German Constitutional Court expressed these concerns in a 2015 ruling, when it intervened to scrutinise the respect of fundamental rights in the execution of an EAW issued following a trial conducted in absentia without the defendant’s lawyer having been notified.56 The BVerG found that mutual trust has limits and ‘can be shaken’,57 particularly when ‘there are indications based on facts that the requirements indispensable for the protection of human dignity would not be complied with in the case of an extradition’.58 The BVerG focused on the principle of individual guilt within the context of the protection of human dignity, which it asserted is ‘beyond the reach of European integration’,59 and found that this consideration also applies to extraditions that take place on the basis of the EAW FD.60 In a landmark ruling, it introduced the requirement of identity review for measures implementing the EAW when human dignity is at issue. Although the BVerG ultimately found that the system established by EU law was not unconstitutional, it put forward a mechanism for the executing authority to scrutinise fundamental rights concerns on an individualised basis.61 While the identity review invoked by the BVerG has been rightly criticised,62 the German Constitutional Court’s intervention sounded alarms in Luxembourg. It drew the attention of the EU to the EAW system’s problematic credibility in the eyes of the authorities called on to apply it and national constitutional courts because of its reliance on presumed, uncritical or even blind trust. The CJEU had an opportunity to directly examine the relationship between fundamental rights, mutual recognition and mutual trust in the joined cases of Aranyosi and Ca˘lda˘raru63, both referred for a preliminary ruling by the Higher Regional Court of Bremen. The reference gave the CJEU another opportunity to take up the question of whether the execution of an EAW could be refused on grounds of concern over the potential violation of fundamental rights. The cases involved both prosecution and conviction warrants issued by Romania and Hungary. The German authorities’ concerns centred on the impact of execution on Article 4 of the Charter. Specifically, they referred to pilot judgments by the ECtHR attesting to breaches of Article 3 ECHR manifest in the unacceptable state of prison conditions in the two countries.64 The German Court raised two broad, but

56 57 61 62

63 64

BVerfG, Order of the Second Senate of 15 December 2015, 2 BvR 2735/14, paras 1–126. 58 59 60 ibid para 67. ibid para 74, see also para 83. ibid para 76. ibid para 72. See paras 63–72. Meyer has noted that the emphasis on identity review did not fit the facts of the case, as EU secondary law was compliant with the German constitution. See F Meyer, ‘“From Solange II to Forever I”: The German Federal Constitutional Court and the European Arrest Warrant (and How the CJEU Responded)’ (2016) 7 New Journal of European Criminal Law 277, 283. Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Ca˘ lda˘raru EU:C:2016:198. ibid paras 43–44, 60–61.

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central, questions in defining the parameters of mutual trust: one on the extent to which serious fundamental rights concerns could lead to the inadmissibility of an EAW, and one regarding the legal framework and content related to the assertion of compliance with fundamental rights by the issuing authorities. In a departure from earlier judgments, the CJEU provided executing authorities with detailed guidelines on how they must proceed when assessing the risk of inhuman or degrading treatment arising from the execution of an EAW. The CJEU put forward a two-step approach. First, a general assessment of the risk must be carried out. If the judicial authority of the executing Member State encounters evidence of real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, it is bound to assess it when called upon to surrender an individual subject to an EAW to the authorities of the issuing Member State.65 To that end, the national court may rely on objective, reliable, specific and properly updated information on the detention conditions prevailing in the issuing Member State to determine whether there are deficiencies, which may be systemic or generalised, may affect certain groups of people or may affect certain places of detention. Sources may include judgments of international courts such as the ECtHR, judgments of courts of the issuing Member State, and decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations.66 National authorities are under a positive obligation to ensure that any prisoner is detained in conditions respectful of human dignity, that the detention does not cause the individual distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, with regard to the practical conditions of imprisonment, the health and well-being of the prisoner are adequately protected.67 However, even if the executing judicial authority finds a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State, the execution of the EAW is not necessarily to be refused.68 In addition to a general assessment of the risk, it will also be necessary, as a second step, for the executing judicial authority to assess specifically and precisely whether there are substantial grounds for believing that the individual concerned will be exposed to that risk.69 The executing authority is obligated to determine whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of that person to the issuing Member State, the detainee will run a real risk of being subjected to inhuman or degrading treatment in that Member State.70 If, on the basis of the information provided, the executing judicial authority finds that there exists a real risk of inhuman or

65 70

ibid para 88. ibid para 94.

66

ibid para 89.

67

ibid para 90.

68

ibid para 91.

69

ibid para 92.

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degrading treatment for the individual for whom the EAW was issued, then the execution is postponed, but not invalidated.71 Surrender is postponed only until such time as supplemental information is received that negates the risk of inhuman or degrading treatment. If that information is not received within a reasonable period, the executing judicial authority shall decide whether the surrender procedure should be abandoned.72 Aranyosi represents a landmark judgment and turning point in the CJEU approach to mutual trust. It confirms a shift from automatic mutual recognition based on uncritical mutual trust (or, as the CJEU President Koen Lenaerts has put it, ‘blind trust’73) to earned trust on the basis of an individualised assessment of the fundamental rights implications of surrender in the prevailing circumstances.74 Aranyosi is significant in two respects: (1) in dropping the CJEU’s insistence on ‘systemic deficiencies’ to justify the executing authority’s examination of the impact of the surrender on an individual basis; and (2) in emphasising (as it has done in its case law on asylum, and in particular in NS) the need for an assessment, not only of the law, but also of the state of fundamental rights protection with regard to the individual concerned.75 Aranyosi is significant in that the CJEU set detailed parameters for the cooperative relationship between national authorities responsible for issuing and executing EAWs. The CJEU provided reasonably detailed guidance for the dialogue between authorities under Article 15 of the EAW FD following a two-stage approach. In this context, the CJEU appears to have been inspired by the German Constitutional Court’s approach to reviewing fundamental rights. Like the German court, it recognised that the right in question is an absolute right linked to human dignity.76 Although Aranyosi is not the outcome of direct dialogue between the CJEU and the German Constitutional Court or the ECtHR, the CJEU’s similar reasoning and finding can be seen as an acknowledgement of the worthiness of those courts’ approach to mutual trust.77

71 73

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77

72 ibid para 98. ibid para 104. K Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’ (2017) 54 CMLRev 805, 806. According to President Lenaerts, mutual trust is not to be confused with blind trust. Writing on the need for earned trust before Aranyosi, see Mitsilegas, EU Criminal Law after Lisbon (n 41) ch 5. V Mitsilegas, ‘Resetting the Parameters of Mutual Trust: From Aranyosi to LM’ in V Mitsilegas, A di Martino, and L Mancano (eds), The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis (Hart 2019). See also G Anagnostaras, ‘Mutual Confidence Is Not Blind Trust! Fundamental Rights Protection and the Execution of the European Arrest Warrant: Aranyosi and Caldararu’ (2016) 53 CMLRev 1675, 1702. Lenaerts (n 73) 807. According to President Lenaerts, the contours of the principle are not carved in stone, but will take concrete shape by means of a constructive dialogue between the CJEU, the ECtHR and national courts.

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Aranyosi has also been taken up by the CJEU in interpreting the system of mutual recognition in the field of asylum law78 and in the field of external relations in the context of extradition.79 As a first step in the CJEU’s change of direction, Aranyosi leaves some questions unanswered and begs a number of others: is the new approach applicable only to cases involving challenges to Article 4 of the Charter, only to absolute rights or to any fundamental right? Is the approach in Aranyosi applicable to other areas of EU law, and in particular to Dublin transfers in EU asylum law? What is the extent of the obligations of the authorities operating the EAW under the cooperative mechanism following Article 15 EAW FD? In particular (a question which was left unanswered by the CJEU in Aranyosi), what is the role of assurances in this cooperative paradigm? In addition, what is the extent of these obligations if the concerns regarding the protection of fundamental rights in the Member State where the issuing authority is based are so broad and systemic as to raise underlying rule of law issues? In LM, the CJEU had the opportunity to provide answers to some of these detailed questions arising in the wake of Aranyosi – especially on the intensity of scrutiny and assurances.80 Moreover, and significantly, the CJEU has since extended the justification of limits on automaticity on human rights grounds and the link between fundamental rights and the rule of law. In its ruling in LM81 the CJEU applied the two-stage Aranyosi test to cases where the rule of law is at stake in the context of the right to a fair trial. In keeping with its case law, and notably Opinion 2/13, the Court first recalled that EU law is based on the fundamental premise that the Member States share a set of common values, as stated in Article 2 TEU.82 This implies and calls for the mutual recognition of those values by the Member States in good faith.83 Mutual trust underpins the principle of mutual recognition and both are ‘of fundamental importance given that they allow an area without internal borders to be created and maintained’.84 However, in exceptional circumstances, limitations may be placed on both of these principles when, for example, the right not to be subjected to inhuman or degrading treatment is in jeopardy (Article 4 of the Charter).85 The Court has now extended these limitations when respect for Article 47 of the Charter, which enshrines the right to an effective remedy and to a fair trial, is jeopardised. The Court affirms that judicial independence ‘forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which

78 79 80 81

82

Case C-578/16 PPU CK, HF, and AS EU:C:2017:127. See Case C 182/15 Petruhhin EU:C:2016:630. Case C-220/18 PPU Generalstaatsanwaltschaft EU:C:2018:589. Case C-216/18 PPU Minister for Justice and Equality (Défaillances du système judiciaire) EU:C:2018:586. 83 84 85 ibid para 35. ibid. ibid para 36. Aranyosi and Ca˘ lda˘ raru (n 63).

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individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded’.86 The Court then referred back to its February 2018 judgment concerning the reduction in the remuneration of Portuguese judges, where it lingered over the notion of the rule of law.87 In LM, the Court provided its first interpretation of Article 47 of the Charter and highlighted that ‘the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law’.88 This requires the independence of courts and tribunals, which is essential to the proper operation of the system of judicial cooperation embodied in the preliminary ruling mechanism.89 It is also essential in the context of the EAW mechanism, the Court added.90 Recalling previous pronouncements on the rationale behind the EAW FD, the Court concluded that the high level of trust between Member States underpinning the EAW mechanism was founded on the premise that the criminal courts of the other Member States ‘meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts’.91 The Court’s ruling in LM is of far-reaching significance, as it paves the way for rule of law scrutiny in Member States via the examination of the fundamental rights concerns latent in the execution of an EAW. The dialogue between the Irish court that referred the case and the CJEU constitutes a key example of bottom-up scrutiny of the rule of law across the EU. This bottom-up scrutiny might go a long way in addressing the shortcomings of law and practice in relation to the operation of Article 7 TEU and the role and limits of EU institutions in effectively scrutinising rule of law compliance in Member States.92 National courts can pass their concerns up to the CJEU and invite the Court to make an assessment. This scrutiny is central for the credible and effective operation of the EAW system, as it involves cross-border cooperation based on mutual trust. Rule of law scrutiny here occurs through courts, rather than through executive agencies. It is a mechanism that promotes dialogue and horizontal interactions, and which stresses the importance of rule of law compliance and scrutiny on the ground. The CJEU is

86 87 88

89

90 92

ibid para 48 (emphasis added). Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117. Minister for Justice and Equality (n 81) para 51, referring to Associação Sindical dos Juízes Portugueses (n 87) para 36. Minister for Justice and Equality (n 81) paras 53–54, referring to Associação Sindical dos Juízes Portugueses (n 87) paras 41–43. 91 ibid para 55. ibid para 58. S Carrera and V Mitsilegas, ‘Upholding the Rule of Law by Scrutinising Judicial Independence: The Irish Court’s Request for a Preliminary Ruling on the European Arrest Warrant’ (2018) CEPS Commentary, www.ceps.eu/publications/upholding-rule-law-scrutinising-judicial-independenceirish-courts-request-preliminary.

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able to act as the enabler of a dialogue between national authorities, providing avenues of communication and cooperation not only at the level of the highest courts but also – and this is important in the context of the EAW – at the level of lower courts. In terms of the scope of fundamental rights scrutiny, LM is significant because it confirms that such scrutiny is not confined to Article 4 of the Charter but also extends to other rights (in the present case, Article 47 rights) when directly related to upholding the rule of law. Ambiguous elements remain, however. The link between fundamental rights and the rule of law seems to bring back to the debate the proper amount of scrutiny of systemic deficiencies to be exercised by the executing authority. In this context, the CJEU’s emphasis on the need to respect the two-step Aranyosi approach in LM may come under challenge, for it may become increasingly difficult for the executing authority to proceed to the second step if the first step of its scrutiny reveals breaches of the rule of law. In such cases, it is difficult to see how a sufficient level of trust for the execution of an EAW can be established.

13.5 Harmonisation of Fundamental Rights as a Facilitator of Mutual Recognition: The Case of Defence Rights The EU legislator has attempted to address challenges surrounding mutual trust and fundamental rights arising from mutual recognition by resorting to – at least minimally – harmonisation. Post-Lisbon, Article 82(2)(b) TFEU expressly confers upon the EU competence to adopt minimum rules on the rights of individuals in criminal procedure. EU competence in the field is not self-standing, but functional: competence to adopt rules on procedural rights has been conferred on the EU only to the extent necessary to facilitate mutual recognition and police and judicial cooperation in criminal matters having a cross-border dimension. Since the entry into force of the Lisbon Treaty, six minimum standard directives have been adopted under Article 82(2)(b) TFEU.93 They introduce three important parameters concerning the contribution of EU measures on defence rights which enhance fundamental rights protection and reconfigure the relationship between authorities responsible for implementing the principle of mutual recognition. These parameters concern the level of protection anticipated by the EU instruments, the instruments’ impact on domestic legal orders and enhanced avenues of fundamental rights scrutiny entailed by the existence of EU secondary law itself. In terms of the level of protection, the minimum standards apply only to purely domestic situations, even though they were adopted to facilitate cross-border cooperation. 93

See Chapter 15.

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Importantly, the directives allow Member States to offer a higher level of protection under national law. This is established in the text of the directives via non-regression clauses stating that nothing in the directives is to be construed as limiting or derogating from any of the rights and procedural safeguards guaranteed under the Charter, the ECHR or other relevant provisions of international law or the law of any Member State that provide a higher level of protection.94 The non-regression clauses open a space to contest the applicability of the Melloni ruling in cross-border cases. Melloni denies national authorities the right to expect others to meet their national standards of fundamental rights protection as long as the standard protection in the Member State of the issuing authority is compatible with the Charter. This applies in particular in cases where there has been harmonisation at EU level. As the preamble to the directive on access to legal representation expressly states, a higher level of protection by Member States should not constitute an obstacle to the mutual recognition of judicial decisions that those minimum rules are designed to facilitate.95 However, it is questionable whether minimum harmonisation in the field of procedural rights, coupled with non-regression clauses, sufficiently justifies such an approach. In terms of the interaction between national authorities seeking to establish mutual trust, accepting lower standards for fundamental rights in another Member State may be a challenge when EU law provides for only minimum harmonisation (understood at times as the lowest common denominator for protection) and leaves a considerable margin of discretion for the adoption of higher standards by Member States. This is particularly true of legislation whose actual character is heavily dependent on how the provisions of the directives are implemented and enforced in practice. Having said that, the adoption of EU legislation in the field of procedural rights

94

95

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010 OJ L280/1, art 8; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1, art 10; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1, art 14; Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceeding [2016] OJ L297/1, art 11; Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132/1, art 23; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceeding [2016] OJ L65/1, art 13. Dir 2013/48/EU (n 94) recital (54).

Mutual Recognition, Fundamental Rights and Criminal Law

opens up two further avenues that will substantially enhance the level of fundamental rights protection. The second parameter for that protection involves the far-reaching impact of EU law on domestic legal systems. A number of key provisions in the directives that confer rights have direct effect. In the decentralised system of enforcement of EU law, individuals can evoke and claim rights directly before their national courts if the EU directives have not been implemented or have been inadequately implemented. In practice, direct effect means that a suspect or accused person can claim a number of key rights – such as the right to an interpreter or the right of access to a lawyer – directly on the basis of EU law if national legislation has not made appropriate provision in conformity with EU law.96 These avenues for decentralised enforcement of secondary EU law, which is essentially fundamental rights law, join the third parameter of protection, namely the proliferation of avenues and means of scrutinising the implementation and operation of these measures on the ground. Post-Lisbon, the Commission has full powers to monitor the implementation of these directives by Member States and the power to initiate infringement proceedings before the CJEU when it considers that the directives have been inadequately implemented. The scope of the Commission’s scrutiny is not limited to the provisions of national legislation adopted to specifically implement the EU directives in question. The Commission is also duty-bound to scrutinise national systems more broadly to ensure that effective implementation has taken place, as well as to ensure that rights are fully applied in practice. It must be noted in this context that the procedural standards set out in the directives will have an impact on a wide range of acts under national criminal procedure,97 which, under the CJEU approach in Åkerberg Fransson,98 will fall within Charter scrutiny even though they do not necessarily implement a specific directive provision. This assertion is reinforced by the Court’s finding in Siragusa. There, the Court found it important to consider the objective of protecting fundamental rights in EU law, which is to ensure that those rights are not infringed in areas of EU activity, whether through action at EU level or through the implementation of EU law by the Member States.99 This approach extends to the Commission’s scrutiny of the implementation of mutual recognition measures such as the EAW. In view of the fundamental rights concerns persistently raised at national level, such scrutiny must include prison and detention conditions as well as trial and pre-trial procedures, although the EU has not specifically legislated on

96

97 98 99

The Spanish Constitutional Court has confirmed that the directive’s provisions on the right to information have direct effect; see STC 13/2017 (30 January 2017). See Case C-216/14 Covaci EU:C:2015:305, Opinion of AG Bot, esp paras 105–06. Case C-617/10 Åkerberg Fransson EU:C:2013:105. Case C-206/13 Siragusa EU:C:2014:126, para 31.

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these matters. In this context, the adoption of EU measures on procedural rights is significant, because it creates a continuum and a functional link between fundamental rights legislation and enforcement legislation in the European public order. It can be seen as a first step towards further convergence, either through ensuing legislation leading to higher-level harmonisation, or through CJEU interpretations that develop fundamental rights protections and a level interpretative playing field by defining autonomous concepts.100

13.6

From Blind to Earned Trust in Europe’s Area of Criminal Justice

This chapter has demonstrated the evolving place of fundamental rights in the exercise of mutual recognition in EU criminal law. The initial approach of the EU legislator – exemplified in the EAW FD – which promoted automatic recognition based on ‘blind trust’ with little or no room for fundamental rights scrutiny by the executing agency was met with resistance by national legislators and courts. This prompted the slow evolution of CJEU case law, which, following direct and indirect dialogue with national courts, finally made a decisive move from blind to earned trust in its ruling in Aranyosi, which introduced a mechanism for the meaningful scrutiny of respect for fundamental rights before concerned individuals are surrendered. Aranyosi has also been applied to asylum law and to extradition requests by third countries, and, significantly, its application has not been limited to cases related to Article 3 ECHR or Article 4 of the Charter, but has also been extended to rights linked to the rule of law. At the same time, the EU legislature has made ample use of the opportunities offered by the Lisbon Treaty to ‘legislate for human rights’101 under Article 82(2) TFEU and adopt a series of directives covering a number of rights for individuals in criminal proceedings. Although these directives claim to introduce only minimum standards, their impact on fundamental rights protection in Europe’s area of criminal justice is significant: they apply not only to cross-border but also to domestic situations; the need for their effectiveness has been underpinned by the CJEU; and a number of their key

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On the role of autonomous concepts in managing diversity in Europe’s area of criminal justice, see V Mitsilegas, ‘Managing Legal Diversity in Europe’s Area of Criminal Justice: The Role of Autonomous Concepts’ in R Colson and S Field (eds), EU Criminal Justice and the Challenges of Legal Diversity: Towards a Socio-Legal Approach to EU Criminal Policy (CUP 2016). V Mitsilegas, ‘Legislating for Human Rights after Lisbon: The Transformative Effect of EU Measures on Procedural Rights in Criminal Proceedings’ in M Fletcher, E Herlin-Karnell and C Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2017).

Mutual Recognition, Fundamental Rights and Criminal Law

provisions have direct effect. Importantly, and in line with the CJEU approach in Aranyosi, the EU’s adoption of measures on defence rights and the requirement to ensure their effective implementation opens the door to extensive scrutiny of national criminal justice systems holistically and with an eye on how legislation is actually implemented and enforced. In this manner, because of the shift from blind to earned trust in Europe’s area of criminal justice, ensuring effective and real compliance with fundamental rights will lead to a transformation of mutual recognition in criminal matters.

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The Right to Liberty and Security in EU Criminal Law LEANDRO MANCANO

14.1

Introduction

EU criminal law is built around measures of mutual recognition and instruments harmonising substantive and procedural standards across the EU. The application of the principle of mutual recognition to judicial cooperation in criminal matters within the EU, put forward by the UK government at the Tampere European Council meeting in 1999, implies that a judicial decision issued in one Member State and addressed to another Member State must be recognised and executed by the latter automatically and without further formalities, unless specific grounds for refusal apply.1 This system, now embedded even in primary law through Article 82 of the Treaty on the Functioning of the European Union (TFEU), relies on significant innovations:2 the abolition of double criminality in thirty-two areas of serious crime, the establishment of tighter deadlines for executing the warrant, the judiciary taking over from the executive as the main actor of cooperation and the partial abolition of the nationality exception. Two groups of measures have been adopted that relate directly to the right to liberty under Article 6 of the Charter of Fundamental Rights of the European Union (CFR or the Charter), understood as the right not to be deprived of liberty arbitrarily or beyond the cases and procedures established by law. On the one hand, deprivation of liberty has been addressed in framework decisions (FDs) on the European arrest warrant (EAW),3 the transfer of prisoners, probation measures and pre-trial measures other than detention.4 On the other hand, the directives on

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As is well known, the principle was first applied in the context of the free movement of goods. See K Armstrong, ‘Mutual Recognition’ in C Barnard and J Scott (eds), The Law of the Single European Market: Unpacking the Premises (Hart 2002). M Platcha, ‘Non-Extradition of Nationals: A Never-Ending Story?’ (1999) 13 Emory International Law Review 77. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European

The Right to Liberty and Security in EU Criminal Law

the right to information5 and the presumption of innocence6 flesh out the right to liberty through specific rules of secondary law. Against this background, the present chapter assesses the protection of the right to liberty under EU law by analysing the above-mentioned measures and relevant case law of the Court of Justice of the European Union (CJEU). The chapter will begin by briefly situating the subject within the broader context of EU criminal law. Next, the right to liberty under EU law will be outlined by reference to Article 6 CFR and the corresponding provision – Article 5 – of the European Convention on Human Rights (ECHR). Three specific topics will then be considered: detention pending recognition that exceeds the deadlines established by the EAW FD; protection of the right to liberty in the directives on procedural rights; and measures of mutual recognition as alternatives to detention. The chapter concludes that the protection of the right to liberty is undermined by the excessively long periods of continued detention that result from the wide discretion left to Member States’ authorities and by practical difficulties in implementing the measures.

14.2 The Right to Liberty and Judicial Cooperation in Criminal Matters The enhancement of judicial cooperation in the EU was triggered by the need to offset the unintended consequences of the abolition of internal frontiers.7 The cooperation would facilitate the fight against forum shopping by potential offenders (such as in situations where offences were not criminalised in the enforcing jurisdiction, led to lower penalties or were less effectively enforced). The emerging EU system of criminal justice consists of a combination of static

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Union [2008] OJ L327/27; Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [2008] OJ L337/102; Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJ L294/20. Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. Although not discussed in this chapter for reasons of space, Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1 should also be mentioned. Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1. See eg V Mitsilegas, J Monar and W Rees, The European Union and Internal Security (Palgrave Macmillan 2003); V Mitsilegas, EU Criminal Law (Hart 2009) 5ff.

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and dynamic rules. The latter are laid down in instruments relating to the mutual recognition of judicial decisions, such as the EAW FD. Each such instrument governs the recognition of the decision to which it relates and the transfer of the person who is the subject of the decision. Static provisions are meant to foster the smooth functioning of judicial cooperation by establishing a level playing field among Member States. These static rules are aimed at both creating common definitions of offences and penalties and harmonising provisions concerning certain individual rights in criminal proceedings.8 An example of such rules is the system for the surrender of individuals suspected or convicted of criminal offences, which was set up with a view to preserving the safe exercise of freedom of movement, as called for in the Tampere Programme. The introduction of minimum standards throughout the EU is meant to increase mutual trust, which is grounded in a rebuttable presumption that Member States all comply with fundamental rights. This presumption constitutes the conceptual foundation of judicial cooperation. Both dynamic and static measures in the area of procedural rights are relevant to the right to liberty. On the one hand, the directives on the right to information and the presumption of innocence lay down safeguards that protect the right to liberty in the pre-trial phase of criminal proceedings and – in the case of the directive on information – EAW procedures. On the other hand, the quasiautomatic nature of surrender calls for reflection on how the transfer from one state to the other may affect the right to liberty, given the time taken for a decision to be recognised and executed in the enforcing Member State. The time limits laid down in the FD (sixty days for recognition plus ten days for surrender after recognition) mean that pre-execution detention could last seventy days if the deadlines are met, and even longer if a dysfunction or delays occur. At the same time, consideration must be given to the level of rights protection in the issuing Member State. For years, the EAW FD and its interpretation by the CJEU have been criticised for failing to expressly allow execution to be refused when there are grounds to suspect fundamental rights violations in the issuing state. It is crucial to be able rely on the right to liberty for the purpose of refusing execution. However, as this chapter will show, that right is exposed to the impact of disruptions in the EAW system, as well as other relevant mutual recognition measures. The chapter will also discuss the static measures designed to strengthen that right and assess the level of protection they offer. Section 14.3 below will describe the key features of the right to liberty in EU law and in its main source of inspiration, the ECHR.

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See nn 5 and 6 for examples of those measures.

The Right to Liberty and Security in EU Criminal Law

14.3 The Right to Liberty in EU Law Article 6 CFR states that ‘[e]veryone has the right to liberty and security of the person’. According to the Praesidium’s explanations on the Charter,9 Article 6 CFR and Article 5 ECHR have the same meaning and scope.10 Article 5(1) ECHR commences as follows: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. Of the situations listed as justifying a deprivation of liberty, those described in subparagraphs (c) and (f) are particularly important for our purposes. Article 5(1)(c) concerns pre-trial detention, while Article 5(1)(f) – which serves as the principal reference for the CJEU in cases concerning the EAW – addresses ‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. Article 5 reinforces the right to liberty with more specific guarantees: the right to be informed promptly of the reasons for the arrest and charges (para 2); the right – in cases of detention on remand – to be brought promptly before a judge and the entitlement to trial within a reasonable time or to release pending trial (para 3); and the right to have the lawfulness of detention reviewed speedily by a court and release ordered if the detention is not lawful (para 4). To be an effective bulwark against arbitrary detention, the right to liberty calls first and foremost for legal certainty: deprivation of liberty must be limited to those cases and procedures foreseen by law. This presupposes clear and accessible legislative provisions regulating the deprivation of liberty and setting out the conditions under which it may be authorised. Broadly worded rules authorising detention and vague procedural norms are likely to lead to violations of the right.11 First affirmed by the ECtHR, the importance of legal certainty has been embraced by the CJEU.12 Next, there is the question of what constitutes deprivation of liberty. Relying on the case law of the ECtHR,13 the CJEU has found that, although deprivation of liberty need not necessarily take the form of detention, factors such as the nature of the restriction, its duration, effects, manner of implementation and the severity of the measure must be taken into account to understand how that measure can be comparable to imprisonment.14

9 10 12 13 14

Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17. 11 CFR art 52(7). Amuur v France App no 19776/92, 22 EHRR 533, paras 50–54. Case C-528/15 Al Chodor EU:C:2017:213, paras 38–40. Villa v Italy App no 42559/08 (ECtHR, 20 April 2010). Case C-294/16 PPU JZ v Prokuratura Rejonowa Łódz´ – S´ródmies´cie EU:C:2016:610, para 47.

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With regard to the grounds for detention, the ECHR has clearly established that recourse may be had to pre-trial detention where there is a reasonable suspicion the person has committed an offence or where such detention is reasonably considered necessary to prevent evasion or recidivism. As regards Article 5(1)(f), the ECtHR has interpreted this provision to mean that deprivation of liberty is lawful (not arbitrary) in situations where it is carried out in good faith; is closely connected to the ground for detention relied on by the executing judicial authority; is enforced in a place and under conditions that are appropriate; and is of a reasonable duration in light of the purposes pursued. The Strasbourg Court does not require that the decision to deprive someone of their liberty in this context must be necessary and proportionate, but only that extradition procedures must be in progress and conducted with due diligence.15 However, the Court recognises that the conditions under which a person is detained may be an indicator of the arbitrary nature of the detention and amount to a violation of the right to liberty. This is in keeping with a broader interpretation of the requirement that no one should be deprived of liberty under conditions that do not conform to the procedures established by law. Once an individual has been placed in detention, they are deprived of liberty which means that clear and accessible legal procedures must be applied for the entire duration of the detention. Thus, penitentiary rules and, more generally, detention conditions are relevant to the right of liberty. As will become clear in the following discussion, the CJEU departs from the standard set by the ECtHR. On the one hand, and despite the relevance of detention on remand under Article 6 CFR and the directive on the presumption of innocence, the CJEU refrains from ruling on matters considered to be the preserve of national law. This has been so even when the Member State’s standard was lower than that established by the ECHR. On the other hand, in EAW cases the Court refers to the standard set by the ECtHR under Article 5(1)(f), but also applies a proportionality test as required by Article 52 CFR. Therefore, CJEU judgments and secondary law play a part in filling out the right to liberty in EU law. With the foregoing in mind, this chapter now hones in on three specific issues: first, it will discuss cases of continuing detention resulting from mutual recognition under the EAW system; secondly, it will examine EU legal measures that safeguard the right to liberty; and lastly, it will assess the effectiveness and limits of instruments of mutual recognition that (in theory) encourage alternatives to detention.

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C Grabenwarter, The European Convention for the Protection of Human Rights and Fundamental Freedoms: A Commentary (Hart 2014) 60ff.

The Right to Liberty and Security in EU Criminal Law

14.4 Detention Pending Recognition of the EAW As outlined above, the EAW is a system involving more than one institutional actor. The executing judicial authority, in accordance with its national law, informs the requested person of the content of the EAW and of the possibility they have of consenting to their surrender to the issuing judicial authority. The executing judicial authority also decides whether, once arrested, the requested person should remain in detention in accordance with its national law. The person may be provisionally released at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of that Member State takes all measures it deems necessary to prevent the person from absconding.16 The EAW FD does not lay down specific rules for the executing judge in the event that the surrender deadline fixed in the EAW passes. Therefore, the words ‘at any time’ could be interpreted broadly as applicable to any situation. Article 23 EAW FD, however, states that if timely surrender is prevented by circumstances beyond the control of any Member State, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. The FD makes clear that the surrender must take place within ten days of the new date agreed, and that the requested person must be released if and when the new time limit expires. Unfortunately, the CJEU’s approach seems to depart from the logic of the FD. In Lanigan, the interpretation of Article 17 read in conjunction with Articles 15 and 12 EAW FD was at issue. Articles 17 and 15 establish procedures and time limits for the decision on the execution of an EAW, while Article 12 provides the executing judge with the possibility of ordering the provisional release of the requested person.17 While the Advocate General and the CJEU agreed that the expiry of the time limit did not affect the validity of the EAW, as affirmed in the FD, their views diverged on the effects of expiry on the person’s right to liberty. The AG relied on Article 5(4) ECHR, according to which a court must speedily review the existence of the conditions for continuing detention on remand to ascertain its lawfulness. In the Advocate General’s view, the expiry of the time limit triggered the detainee’s right to legal remedy under Article 5(4) ECHR, entitling the detainee to a court decision on whether the continuation of provisional custody was justified by legitimate reasons beyond those that led to the issuing of the EAW, by duly identified individual grounds related to the execution of the particular warrant, or by exceptional, duly justified circumstances not imputable to the executing Member State. The AG opined that, depending on the court’s

16 17

EAW FD (n 3) arts 11, 12. Case C-237/15 PPU Minister for Justice and Equality v Francis Lanigan EU:C:2015:474.

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decision, either release should be ordered or, in the event that the detained person has to remain in custody, the competent national court must constantly ensure that the rights guaranteed by Article 6 CFR are upheld.18 The CJEU found that the expiry of the time limits neither foreclosed the execution of the EAW nor created a general and unconditional obligation to release the detainee.19 However, the Court ruled that Article 1(3) required the EAW FD to be interpreted in conformity with Articles 6 and 52 CFR. The right to liberty entailed that, for custody to be lawful, the procedures for the execution had to be carried out with due diligence. The executing judge was required to consider factors such as the Member State authorities’ failure to act; whether the requested person bore any responsibility for the delay; the sentence potentially faced by the requested person; the potential risk of that person absconding; and whether the requested person had been held in custody for a period that greatly exceeded the time limits stipulated in Article 17. Were the court to find that release was warranted, measures should be adopted to ensure that the material conditions necessary to proceed with the surrender remain fulfilled.20 Though neither the Advocate General nor the Court envisaged an automatic right to release, the Advocate General’s interpretation seems more in tune with the right to liberty, for the expiry of the deadlines constitutes an exceptional – or at least anomalous – circumstance in that it results in the person being held in detention for longer than is normally allowed by the FD. This is why the stricter scrutiny proposed by the Advocate General is a sounder legal approach than that adopted by the CJEU. In Vilkas, the Court broadened the margin of discretion left to national courts.21 The question there was as to whether Article 23(5) EAW FD – the obligation to release on the expiry of surrender deadlines – applied to a situation where the new date for surrender agreed pursuant to Article 23(3) could not be met because of the offender’s continuing resistance to the execution of the EAW. While confirming that states are not relieved of the obligation laid down in the FD once the new deadline for surrender has passed, it also found that there was no obligation to release the requested person where the second attempt to surrender within the deadline is prevented by circumstances beyond the Member State’s control.22 The Court held that under Article 12 EAW FD the executing authority had discretion to decide whether the circumstances were such that the person could be freed.23 It did not expound on the interpretation of circumstances beyond the control of any of the Member States’ in Article 23(3). The Advocate General, on the other hand,

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Case C-237/15 PPU Minister for Justice and Equality v Francis Lanigan EU:C:2015:509, Opinion of AG Cruz Villalón, para 179. 20 Minister for Justice and Equality v Francis Lanigan (n 17) para 50. ibid paras 53ff. Case C-640/15 Minister for Justice and Equality v Tomas Vilkas EU:C:2017:39. 23 ibid para 74. ibid para 42.

The Right to Liberty and Security in EU Criminal Law

compared the different language versions of the FD and came to the conclusion that these circumstances were equivalent to force majeure. In the case in question, where the first surrender attempt was frustrated by the person’s aggressive behaviour, that behaviour could be qualified as force majeure only if the national judicial authorities could not reasonably have foreseen the turn of events based on the facts of the case or the elements in the file. A repetition of almost identical behaviour preventing a subsequent surrender attempt could not reasonably be qualified as force majeure, unless, on the facts of the case, the competent authority had reason to believe that such a scenario would not recur.24 In TC,25 however, the Court found that the FD precluded a national provision imposing a general and unconditional obligation to release a requested person after ninety days where there is a very serious risk of flight and that risk cannot be reduced to an acceptable level through appropriate measures. The Court also stated that Article 6 CFR precluded national case law allowing for detention beyond that ninety-day period on the ground that the period was interrupted if the executing authority refers a question to the CJEU for a preliminary ruling or is waiting for the Court to reply to a request for a preliminary ruling made by another executing authority, or if the executing authority postpones the decision on surrender on account of a real risk of inhuman or degrading detention conditions in the issuing Member State. Such case law failed to ensure that the national provision was interpreted in conformity with the EAW FD and was a source of variations that could result in differences in the length of detention.26 This last point tends to confirm a principle first posited in Ca˘lda˘raru, according to which an EAW should not be executed where there is risk of inhumane treatment in the issuing state.27 While the judicial authorities are exchanging information to determine the extent of the risk of ill-treatment, the duration of the requested person’s detention must not exceed what is judged proportionate, as required by Article 52(1) CFR.28 The introduction of strict time limits for recognition and surrender has undeniably improved the right to liberty as compared to extradition. Within and beyond those limits, the executing judge has an obligation to interpret the EAW in conformity with Articles 6 and 52 CFR. The applicability of the principle of proportionality in the context of the EAW has been heavily debated.29 The 24

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Case C-640/15 Minister for Justice and Equality v Tomas Vilkas EU:C:2016:826, Opinion of AG Bobek, para 84. 26 Case C-492/18 PPU TC EU:C:2019:108. ibid para 77. Joined Cases C-404/15 and C-650/15 PPU Aranyosi and Ca˘lda˘raru EU:C:2016:198. ibid para 101. A Weyembergh, European Added Value Assessment: The EU Arrest Warrant, Annex I: Critical Assessment of the Existing European Arrest Warrant Framework Decision (EU 2014) 35, doi: 10.2861/44748.

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executing authority must refer to those provisions when deciding whether to hold the requested person in detention after receipt of the EAW. National courts have asked a variety of questions about how to interpret the FD in relation to detention beyond the time limits set inf the FD, which again points to its controversial nature. In an exercise of – understandable – judicial subsidiarity, the CJEU has for the most part deferred decisions to national courts. In doing so, it has outlined a few principles. To begin with, the expiry of the deadline does not trigger a right to be released, nor does the detention clock stop ticking in the event of an exchange of information between judicial authorities– including information to ascertain the risk of possible inhumane treatment in the issuing state. The Court has also indicated that detention should not be prolonged excessively, although it is lawful when execution of the EAW is prevented by circumstances beyond the Member State’s control. On the one hand, we see no automatic triggering of the right to release through non-compliance with the deadlines, and on the other hand a reaffirmation of the principle that detention should not be prolonged excessively. In between lies a vast grey area where the person can be lawfully held in detention in the executing state if circumstances beyond the Member State’s control materialise. While the principle of non-automatic release is fairly straightforward, the same cannot be said of the ban on excessive detention or the definition of circumstances beyond the Member State’s control. The result is that judges are left with extremely broad discretion, the only guidance being the criteria mentioned in Lanigan. How the judges weigh those criteria against each other remains unknown, however, as the CJEU has not addressed the EU legislative provision on automatic release in specific circumstances contained in Article 23 EAW FD. It could be inferred from the Court’s finding in Lanigan that detention could continue in the event of lapses on the part of authorities in other Member States. It is understandable that in Vilkas the Court objected to the  application of Article 23(5) EAW FD – obligation to release the person after the expiry of the deadlines laid down in Article 23(2)–(4) – to situations where the delay was caused by the surrender. However, the CJEU worded its objection more broadly when it came to the undefined ‘circumstances beyond the control of any of the Member States’.

14.5 The Right to Liberty and the Procedural Rights Directives As the EU’s involvement in criminal law increased over the years, discussions turned to the guarantees to which persons subject to investigation and EAW procedures are entitled. The 2009 Roadmap on individual rights in criminal

The Right to Liberty and Security in EU Criminal Law

proceedings30 promoted during the Swedish presidency has so far resulted in a number of initiatives that are relevant to the right to liberty – namely, directives on (1) the right of information and (2) the presumption of innocence, and a Green Paper published in June 2011 examining appropriate measures concerning the period of pre-trial detention.31 The directive on the right to information of suspects or accused persons in criminal proceedings and of persons subject to an EAW is particularly important for the right to liberty. The person concerned must be provided with a Letter of Rights containing information on: the right of access to a lawyer; any entitlement to free legal advice, and the conditions for obtaining such advice; the right to be informed of the accusation; the right to interpretation and translation; the right to remain silent; the maximum number of hours or days suspects or accused persons may be deprived of liberty before being brought before a judicial authority; and the possibility of challenging the lawfulness of the arrest, obtaining a review of the detention, and making a request for provisional release. Member States shall ensure that suspects or accused persons receive the Letter of Rights in a language that they understand. The rights can be communicated orally if they cannot be provided in writing in that language. The person must be informed of the reasons for their arrest or detention, including the criminal act of which they are suspected or accused of having committed. No later than when the merits of the accusation are submitted to a court, information must be given on the accusation, including the nature and the legal classification of the criminal offence, and the level of involvement of the person concerned. Any subsequent changes to the information given must be communicated to the person when necessary for the fairness of the proceedings. Member States must ensure that suspects or accused persons or their lawyers have the right to challenge the possible failure or refusal of the competent authorities to provide information as required by the directive following the procedures established under national law.32 Many aspects of the directive – as well as other measures in the Roadmap – have been closely scrutinised by scholars.33 For one thing, the piecemeal nature of the EU legislation in this area has drawn criticism from those who believe that

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Council of the EU, ‘Roadmap with a view to fostering protection of suspected and accused persons in criminal proceedings’ doc 11457/09, 1 July 2009 (Roadmap); Draft Resolution 12116/09, 15 July 2009. Commission, ‘Green Paper on the application of EU criminal justice legislation in the field of detention’ COM (2011) 327 final. See Dir 2012/13/EU (n 5) arts 3–7. L van Puyenbroeck and G Vermeulen, Towards Minimum Procedural Guarantees for the Defence in Criminal Proceedings in the EU (2011) 60 International and Comparative Law Quarterly 1017; JR Spencer, EU Fair Trial Rights: Progress at Last (2010) 1 New Journal of European Criminal Law 457.

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the directives do not demonstrate a ‘holistic understanding of the criminal justice process and this is exposed in an incremental methodology which articulates defence rights individually, arbitrarily compartmentalising them’.34 Secondly, the directive on the right to information provides for no consequences for violations of the rights enshrined in it.35 Thirdly, and relatedly, limitations on the rights foreseen in the directive may be contested on grounds of legal certainty.36 For example, the imprecision of ‘safeguarding the fairness of the proceedings’ as a condition for any restrictions on those rights introduces a degree of uncertainty. These controversial aspects notwithstanding, the directive has the merit of reducing the distance between the protection afforded by the right to liberty in criminal proceedings and that afforded by ongoing EAW procedures. Also closely connected to the right to liberty in the context of pre-trial detention is the directive on the presumption of innocence. Consideration must be given to the presumption of innocence when deciding to deprive someone of their liberty. To that effect, the directive establishes that Member States are to take the measures necessary to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, all public statements made by public authorities, as well as judicial decisions other than those on guilt, refrain from referring to that person as guilty. Furthermore, Member States must ensure that suspects and accused persons are not presented as guilty, in court or in public, through the use of measures of physical restraint. This is without prejudice, however, to acts of the prosecution aimed at proving the guilt of the person, preliminary decisions of a procedural nature based on suspicion or incriminating evidence,37 or measures required for case-specific reasons relating to security or to preventing suspects or accused persons from absconding or contacting third parties.38 The standard used to decide on pre-trial detention (initially and in the event of its continuation) is therefore key to upholding the right to liberty and the presumption of innocence. The ECtHR has consistently stated that detention under Article 5(1)(c) is lawful in the presence of a reasonable and persistent suspicion

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D Sayers, ‘Protecting Fair Trial Rights in Criminal Cases in the European Union: Where Does the Roadmap Take Us?’ (2014) 14 Human Rights Law Review 733, 760. Michele Caianiello, ‘To Sanction (or Not to Sanction) Procedural Flaws at EU Level? A Step Forward in the Creation of an EU Criminal Process’ (2014) 22 European Journal of Crime, Criminal Law and Criminal Justice 317. However, a state might be found in breach of Article 47(1) of the Charter for failing to provide an effective remedy against the violation of a right guaranteed by EU law. Authors point to the practical difficulties that lawyers encounter in protecting suspects’ rights across the EU. See V Mols, ‘Bringing Directives on Procedural Rights of the EU to Police Stations: Practical Training for Criminal Defence Lawyers’ (2017) 8 New Journal of European Criminal Law 300. 38 See Dir (EU) 2016/343 (n 6) art 4(1). ibid art 5(2).

The Right to Liberty and Security in EU Criminal Law

that the arrested person has committed an offence.39 Furthermore, Article 5(4) ECHR requires the national judge to address any concrete facts invoked by the detainee that cast doubt on the lawfulness of the deprivation of liberty.40 The CJEU’s interpretation of the presumption of innocence directive in the Milev case points to a different standard.41 The case involved the compatibility of Bulgarian legislation and case law with the directive. The national law had evolved such that the court hearing the case, at both the pre-trial and trial stages, was to rule on the basis of prima facie rather than detailed knowledge of the evidence that the person had committed an offence. Against that background, the referring court asked the CJEU whether a prima facie examination of the reasonable grounds for believing that the suspect had committed the offence was compatible with the presumption of innocence directive (in particular, Articles 3, 4(1) and 10) and Articles 47 and 48 of the Charter, and whether a court ruling on a motion to modify a pre-trial detention measure could give reasons without comparing the incriminating and exculpatory evidence. The Advocate General found an inseparable link between the right to liberty and the presumption of innocence and ruled that pre-trial detention could be justified only if there were specific indications that, notwithstanding the presumption of innocence, considerations of public interest outweighed the rule of respect for individual liberty. The Advocate General also pointed to the difficulty of balancing the standard for detention under Article 5(1)(c) ECHR and the presumption of innocence. For example, imposing the requirement of a ‘strong likelihood’ that the person committed the offence would certainly safeguard the right to liberty, but might prejudice the presumption of innocence. The Advocate General concluded that Articles 6 and 48 CFR and the directive must be interpreted as meaning that where an accused person submits exculpatory evidence that does not appear implausible or frivolous, the judge examining an appeal against the person’s pretrial detention must take that evidence into account, together with the incriminating evidence, in assessing whether that person can reasonably be suspected of having committed the offence at issue.42 The CJEU departed quite significantly from the Advocate General’s opinion. Firstly, the right to liberty did not enter into the CJEU’s reasoning.43 In a rather laconic judgment, the Court found that the directive confined itself to establishing common minimum rules for protecting the procedural rights of suspects

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McKay v United Kingdom App no 543/03 (ECtHR, 3 October 2006) para 40. Nikolova v Bulgaria App no 31195/96 (ECtHR, 25 March 1999) para 61. Case C-310/18 PPU Criminal proceedings against Emil Milev EU:C:2018:732. See Case C-310/18 PPU Criminal proceedings against Emil Milev EU:C:2018:645, Opinion of AG Wathelet, paras 61–88. The national court did not address the right to liberty.

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and accused persons in order to strengthen Member States’ trust in each other’s criminal justice systems and thus facilitate mutual recognition of decisions in criminal matters. According to the Court, therefore, the directive did not preclude the adoption of preliminary decisions of a procedural nature, provided that such decisions did not refer to the person in custody as guilty. Moreover, matters relating to the circumstances in which a decision on pre-trial detention could be adopted were not governed by that directive but were rather the preserve of national law.44 The discussions over the EAW and the directives reveal the importance of pretrial detention in the EU criminal justice system. As early as 2011, the Commission emphasised the following issues concerning pre-trial detention within the EU. Firstly, the proportionality principle required that pre-trial detention be used only when absolutely necessary and only for as long as required. Secondly, national judicial authorities were responsible for ensuring that pre-trial detention complies with the proportionality principle as well as the presumption of innocence and the right to liberty. Thirdly, excessively long pre-trial detention might undermine mutual trust and mutual recognition. For that reason, the Commission singled out EU countries that imposed no maximum duration on pre-trial detention. The justification for continued detention should be reviewed periodically by the competent judicial authorities. The Commission thus pondered the adoption of minimum rules on pre-trial detention in order to improve mutual trust. As Coventry has shown, however, most Member States rejected the claim that issues of pre-trial detention put mutual trust in jeopardy, with fourteen of them opposing the adoption of any EU action in this regard.45 Besides the political reasons for opposing such action because of the possible impact on certain Member States’ criminal justice systems, there were important legal issues touching on the very competence of the EU in this realm. The scepticism related to the potential tension between a legislative initiative, the principle of subsidiarity and the wording of Article 83(2) TFEU, which authorised the adoption of minimum rules (1) to the extent necessary to facilitate mutual recognition (2) in criminal matters (3) having a cross-border dimension.46 As a matter of fact, the Commission has not put forward any proposals so far. What the 2011 Green Paper and the analysis of the Member State practices highlighted, however, is the greater impact of pre-trial detention (and

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See Milev (n 41) paras 48–49. T Coventry, ‘Pretrial Detention: Assessing European Union Competence under Article 82(2) TFEU’ (2017) 8 New Journal of European Criminal Law 43, 57–58. While authors such as Peers embrace a more flexible understanding of the conditions laid down in the founding treaties, Coventry expresses serious doubts about such an interpretation and, in general, about the EU’s competence to act in this area. See S Peers, EU Justice and Home Affairs Law (3rd edn, OUP 2011) 670.

The Right to Liberty and Security in EU Criminal Law

custodial measures more broadly) on non-nationals. This is the focus of Section 14.6, which discusses EU instruments on the mutual recognition of alternatives to the deprivation of liberty.

14.6 The Right to Liberty and Transfer of Prisoners, Probation Measures and Alternatives to Pre-Trial Detention The creation of a borderless zone increases the possibility that persons are investigated, tried and convicted in Member States of which they are not nationals. Research has shown that judicial authorities are not inclined to grant pre- and post-conviction measures other than deprivation of liberty to non-residents, as they cannot be monitored properly.47 Furthermore, people sentenced to custodial penalties are less likely to reintegrate in other Member States than in their countries of nationality or residence. The three FDs on the transfer of prisoners, probation measures and pre-trial measures (European Supervision Order or ESO) as alternatives to detention aim to overcome these problems through a system of mutual recognition of judicial decisions followed by the transfer of the person to the Member State where they can benefit from alternatives to detention (or, in the case of transfer of prisoners, where they have substantial economic and social ties). The instruments are particularly relevant to the right to liberty. They all result in the person concerned being deprived of liberty (coercive transfer) if the judicial decision in question is recognised. Once the transfer has taken place, the individual will be subject to a new legal regime, which will differ from that of the issuing state, possibly entailing different rules on the substantive basis for detention and different procedural measures to deprive a person of liberty. For example, the breach of a pre- or post-trial measure other than detention may have different consequences in different Member State. Rules on the enforcement of detention – therefore concerning the procedures through which someone is deprived of liberty – may also vary significantly. However, the FDs give no assurance that individuals will be adequately informed of a potential alteration of their right to liberty. In general, the FDs provide no effective procedural safeguards in this respect. This creates a gulf between these measures for the recognition of alternatives to detention and the measures discussed in Sections 14.4 and 14.5. The procedural rights directives – except the one on the presumption of innocence – lay down

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E Cape and others (eds), Suspects in Europe: Procedural Rights at the Investigative Stage of the Criminal Process in the European Union (Intersentia, 2007); AM van Kalmthout and others (eds), Pre-Trial Detention in the European Union: An Analysis of Minimum Standards in Pre-Trial Detention and the Grounds for Regular Review in the Member States of the EU (Wolf Legal 2009).

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rules concerning these rights in (1) criminal proceedings and (2) proceedings for the execution of an EAW.48 The EU legislature recognises that there is a difference between these two kinds of procedures. While the directives reduce the divergence between criminal proceedings and the EAW with respect to the degree of protection they offer, the same cannot be said of the other FDs. However, the other FDs significantly affect the right to liberty, especially in the case of alternatives to preand post-conviction detention, where the available measures are less coercive. The person concerned may remain unaware of these issues due their lack of involvement in the recognition procedures, and as a result find themselves deprived of their liberty. On the one hand, the FDs allow for and regulate – minimally – deprivation of liberty and the transfer of the person concerned. On the other hand, they provide no guarantees ensuring that the individual is made aware of their rights with regard to transfer procedures or of the difference between legal regimes that may affect their right to liberty. Legal uncertainty stems not only from the lack of involvement of the person concerned but also from the procedures and the transfer itself. Let us take the example of continuing detention. The FDs on probation and alternatives to pretrial detention require the decision on recognition to be taken within sixty days. They also allow this time limit to be disregarded in exceptional circumstances.49 No further deadlines are laid down, so the transfer of the person concerned – and therefore their early release – can be suspended sine die.50 Allowing for continued detention of the individual on a very broadly worded legal basis with no date set for a decision could be highly detrimental to the right to liberty. Comparative analysis has revealed significant underuse of the ESO as well as practical issues such as the difficulty of adapting measures in the Member State to which the person is transferred.51 The relationship between the FDs and the EAW should also be highlighted. The FD on transfer of prisoners provides that a Member State requested to permit transit of the prisoner must inform the issuing Member State if it is unable to guarantee that the sentenced person will not be prosecuted or detained. In such a case, the issuing Member State may withdraw its request.52 But what if the latter

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See T Spronken and others, EU Procedural Rights in Criminal Proceedings (Maklu 2009); E Guild and L Marin (eds), Still Not Resolved? Constitutional Issues of the European Arrest Warrant (Wolf Legal 2009). See FD 2008/909/JHA (n 4) arts 12(2) and (3) respectively. However, the FD on probation measures states that a new time limit should be established by the authority of the executing Member State (art 12(2)). E Sellier and A Weyembergh, Criminal Procedural Laws across the European Union: A Comparative Analysis of Selected Main Differences and the Impact They Have over the Development of EU Legislation (EU 2018) 99, doi: 10.2861/928251. See FD 2008/909/JHA (n 4) art 16.

The Right to Liberty and Security in EU Criminal Law

decides not to withdraw its request despite the warning? Also, the risk that the Member State of transit might issue such a warning as a ruse to circumvent the EAW procedures should not be underestimated. Doubts also arise from the ESO FD, which provides that if the competent authority in the issuing Member State has issued an EAW or any other enforceable judicial decision having the same effect, the person shall be surrendered in accordance with the EAW FD.53 The reference to other decisions having the same effect is not altogether clear. These provisions raise more issues of legal certainty, further justifying the circumspect remarks made throughout this chapter on the impact of mutual recognition measures on the right to liberty.

14.7 Conclusions The present chapter has addressed the impact of EU criminal law on the right to liberty and security. Broadening the perspective, the assessment started by placing the EAW in context, pointing out that mutual recognition was introduced to compensate for the unintended consequences of the abolition of internal frontiers. It was then shown that, while considerably streamlining interstate cooperation, the application of that principle to criminal matters has, brought new challenges for fundamental rights protection. Thirdly, and relatedly, streamlined cooperation has been possible largely because of mutual trust – that is, the reciprocal presumption that Member States observe fundamental rights save in exceptional circumstances. Fourthly, the measures of mutual recognition involving deprivation of liberty have combined to form a system of forced movement of persons within the EU. Fifthly, that system works through the joint operation of static (approximation of certain procedural rights) and dynamic (regulation of the interstate transfer) rules. The chapter has shown that EU criminal law is affecting more and more aspects of the right to liberty. The law and practice in both the executing Member State and the issuing Member State are particularly relevant to the functioning of the system, which in turn can have significant consequences for the right to liberty. The EAW FD sets specific deadlines for recognition and surrender, but governs the timeline of possible disruptions only to a limited extent in Article 23. In situations where the person subject to an EAW might continue to be detained for long periods of time beyond the deadlines established in the FD, the CJEU has not been at all exacting on such extended deprivation of liberty. While it has found that the FD must be interpreted in keeping with Articles 6 and 52 CFR and has stated that detention should not be prolonged excessively, it is hardly imaginable that

53

ibid art 21.

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the Luxembourg Court judges could have said anything else. Moreover, the Court has been similarly undemanding in its understanding of ‘circumstances beyond the control of any of the Member States’, leaving executing Member States with broad discretion to keep the person in detention beyond the time limits mentioned in the FD. Static and dynamic measures have been adopted to reduce and regulate recourse to deprivation of liberty before and after conviction. Examples include the directives on the right to information and the presumption of innocence. These instruments must be commended for attempting to create a level playing field on certain rights in criminal proceedings. However, the broad wording of the directives’ provisions and the hands-off approach taken by the Court give cause to doubt their effectiveness for harmonisation purposes. This is especially so when it comes to national laws and practices that clearly fall below the standard established by the ECtHR. Similar concerns may be voiced with regard to the FDs that set up a mechanism of mutual recognition for pre- and post-trial alternatives to detention alternatives. While the FDs make it possible for a person to be transferred to the Member State where they will benefit from those measures, they also provide a one-size-fits-all legal basis for postponing that transfer indefinitely. Furthermore, the implementation and use of those measures – especially the ESO– have not, at least so far, lived up to expectations.

15

Defence Rights and Effective Remedies in EU Criminal Law* CORAL ARANGÜENA FANEGO

15.1 Introduction The setting up of a common framework of minimum rules for the protection of suspects and accused persons in criminal proceedings is closely connected to the principle of mutual recognition of judicial decisions, which has emerged as a genuine principle of primary EU law1 and the axis around which judicial cooperation in criminal matters must be organised. The application of the legal instruments based on this principle has shown that mutual recognition works effectively only when accompanied by mutual trust,2 meaning that judicial authorities and other actors involved in criminal proceedings allow judicial decisions from other Member States to produce effects equivalent to those produced by decisions from their own country. This close connection between the two principles not only implies trust in the fitness of the legal systems of other Member States, but also assumes that rules from other legal systems are correctly applied in daily practice. Experience has shown that mere ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not in itself instil sufficient confidence in the legal systems of other Member States, notably due not only to varying but also, in some Member States, inadequate levels of compliance with the fundamental rights enshrined in the ECHR.3 Mutual recognition will be strengthened only if the fundamental rights and guarantees proclaimed in Article * This chapter was written as part of the research project ‘Garantías Procesales de Investigados y Acusados: la Necesidad de Armonización y Fortalecimiento en el Ámbito de la Unión Europea’ (DER2016-78096-P) co-directed by C Arangüena Fanego and M De Hoyos Sancho. It was translated into English by Ángeles Gutiérrez-Zarza, Associate Professor of Procedural Law at the University of Castilla-La Mancha and a member of the research team. 1 C Arangüena Fanego and F Fonseca Morillo, ‘Espacio de Libertad, Seguridad y Justicia’ in A Calonge Velázquez and R Martín de la Guardia (eds), Políticas Comunitarias: Bases Jurídicas (2013) 143–44. 2 See esp Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Caldararu EU:C:2016:198; Case C-216/18 PPU LM EU:C:2018:586; Case 220/18 PPU ML EU:C:2018:589. 3 A Tinsley, ‘Protecting Criminal Defence Rights through EU Law: Opportunities and Challenges’ (2013) 4 New Journal of European Criminal Law 461, esp 462 (unlike most reticent opinions on setting common EU minimum standards for suspects and accused persons, the author considers that procedural rights were embedded in arts 5 and 6 ECHR).

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6 ECHR are applied more coherently, and common minimum rules conforming with the ECHR and the Charter are better developed among Member States. The need for a common set of rules concerning procedural rights for suspects and accused persons was mentioned by the Tampere European Council in 1999. It was not until 2004, however, that the first initiative to build on this idea materialised in the ‘Proposal for a Council Framework Decision on certain procedural rights for suspects and accused persons in criminal proceedings throughout the European Union’,4 which in the end was not adopted. However, in its resolution of 30 November 2009 the Council approved a roadmap for strengthening procedural rights of suspects or accused persons in criminal proceedings (the Roadmap),5 on the basis of which six directives on procedural rights have been adopted. The directives on procedural rights today represent a reference point for procedural guarantees and should be regarded as an integral part of the protection afforded by Article 48(2) of the Charter.6 This chapter will analyse these six directives, focusing on the consequences of their adoption by the institutions of the EU, the deficiencies that may have emerged during their implementation and the difficulties encountered in their application. Although each of these EU instruments develops one or more particular procedural rights, all of them share a number of common features constituting a kind of general theory. This general theory will be discussed in Section 15.2 and the most relevant aspects of each directive in the subsequent sections. The first three directives have already been thoroughly analysed in the TRAINAC study7 and 4

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COM (2004) 328 final (28 April 2004). On this framework decision, see C Arangüena Fanego (ed), Garantías Procesales en los Procesos Penales en la Unión Europea/Procedural Safeguards in Criminal Proceedings throughout the European Union (2007). This was an initiative taken during the second semester of 2009 under Sweden’s presidency of the Council of the EU (Doc 11457/09 DROIPEN 53 COPEN 120, 1 July 2009), ultimately adopted by Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] OJ C295/1. See E Guild and S Carrera, ‘Towards the Next Phase of the EU’s Area of Freedom, Security and Justice: The European Commission’s Proposals for the Stockholm Programme’ CEPS Policy Brief 196 (20 August, 2009); E Guild, S Carrera and A Eggenschwiler (eds), The Area of Freedom, Security and Justice Ten Years On: Successes and Future Challenges under the Stockholm Programme (CEPS 2010); M Jimeno-Bulnes, ‘The EU Roadmap for Strengthening Procedural Rights of Suspected or Accused Persons in Criminal Proceedings’ [2009] Eucrim 157. S Allegrezza, ‘Toward a European Constitutional Framework for Defence Rights’ in S Allegrezza and V Covolo (eds), Effective Defence Rights in Criminal Proceedings (Wolters Kluwer 2018) 33. However, the Charter cannot be used to expand the scope and content of the procedural obligations defined in the secondary law rule in order to create transposition obligations that clearly do not exist under that rule. Reference must be made to the Charter to correctly interpret the notions mentioned in the directives. Case C-646/17 Moro EU:C:2019:95 Opinion of AG Michal Bobek, paras 92–93. Council of Bars and Law Societies of Europe /European Lawyers Foundation, ‘TRAINAC: Assessment, Good Practices and Recommendations on the Right to Interpretation and Translation, the Right to Information and the Right of Access to a Lawyer in Criminal Proceedings’, www .ccbe.eu/fileadmin/user_upload/NTCdocument/TRAINAC_Final_Report1_1460987001.pdf.

Defence Rights and Effective Remedies in Criminal Law

three Commission reports8 dealing with their implementation and application in the field of EU criminal justice. The conclusions of these analyses are considered and quoted throughout this chapter.

15.2 Requirements Common to All Directives on Procedural Safeguards The directives on procedural rights have the common objective of in some way harmonising the rights of suspects and accused persons in the EU and facilitating the application of such rights. In all cases, the level of protection they are given cannot be less than that guaranteed by the ECHR or the Charter, whose legal provisions are regarded as a starting point and a common legal framework.9 The Charter represents the constitutional basis of European policy in the field of criminal justice. Article 48(2) of the Charter10 is to be regarded as one aspect of the right to a fair trial affirmed in Article 47, so if defence rights are violated, so too is the fairness of the trial. At the same time, it constitutes the backbone of that right, for the principle of equality of arms ensures that the necessary instruments are available to the defence, which is the structurally weaker party in the balance of power in criminal proceedings. In order to define what comprises the rights of the defence, it is necessary to refer to Article 6(3) ECHR, which lists the procedural guarantees they cover, as well as to the European Court of Human Rights (ECtHR)’s interpretation of them.11

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‘Report from The Commission to the European Parliament and the Council on the implementation of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings’ COM (2018) 857 final; ‘Report from The Commission to the European Parliament and the Council on the implementation of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings’ COM (2018) 858 final; ‘Report from the Commission to the European Parliament and the Council on the implementation of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third person informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty’ COM (2018) 560 final. All six directives contain the traditional non-regression clause. In addition, the directives proclaim in their recitals that the level of protection provided by Member States must never fall below the standards set in the ECHR and the Charter as interpreted in the ECtHR and CJEU case law. See D Sayers, ‘Article 48 (Administrative Law)’ and S Peers and S Prechal, ‘Article 52’ in Peers T and others (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014). It can be inferred from the ‘Explanations relating to the Charter of Fundamental Rights’ [2007] OJ C303/17 that the protection afforded to the rights of the defence under Article 48(2) encompasses also those guarantees that are not explicitly provided in Article 6(3) ECHR but which the ECtHR has read into that provision. See Allegrezza (n 6) 31–33.

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As regards their scope of application, the six directives share some common features, although certain nuances considered as necessary were introduced mainly in the most recent directives. Regarding their personal scope of application, the rights and guarantees are accorded universally to all individuals on the sole condition of being subject to criminal proceedings as a suspect or accused person. The terms ‘suspect’ and ‘accused person’ as used in the directives are wide enough to encompass all the different situations in which individuals may find themselves in the course of criminal proceedings, which may be referred to variously in different domestic legal systems. The vis expansiva of fundamental rights, which applies equally to procedural guarantees, requires that the beneficiaries of those rights be interpreted as widely as possible. It also requires that no distinction be made between EU citizens or foreigners in relation to ownership. The directive on the presumption of innocence, however, excludes legal persons from its scope. Regarding the directives’ material scope of application, the fundamental rights apply to all criminal proceedings conducted in Member States,12 as well as to procedures for executing a European arrest warrants (EAW),13 as provided in Article 11(2) of the EAW framework decision.14 In the case of non-criminal procedures in which an authority other than a court with criminal jurisdiction imposes sanctions for minor offences, fundamental rights apply once the sanction can be appealed to a criminal court and only to the proceedings in that court.15 Regarding their temporal scope of application, the directives apply from the moment individuals are made aware that they are suspects or persons accused of having committed a criminal offence (subject to certain nuances in the directive on the presumption of innocence), or from the moment they become the subject of an EAW. The procedural rights protect individuals during the criminal proceedings and up to their conclusion, including, where applicable, sentencing and the resolution of any appeal. Any extension of the fundamental rights into the execution phase is tacitly excluded. When it comes to their territorial scope of application, the six directives are only partially concordant. The directives on the right to interpretation and translation and on the right to information are applicable to all Member States except Denmark, pursuant to TFEU Protocol 22. Nor, pursuant to Protocols 21 and 22, did Denmark or the United Kingdom and Ireland take part in the adoption of the

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On the concept of criminal proceedings, see Case C-467/18 EP EU:C:2019:765, para 41 The directives on procedural rights must include specific references to EAW proceedings because the latter are excluded ratione materiae from the scope of Article 6(3) ECHR. 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. Such a limitation seems justified for reasons of proportionality and economy.

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directive on the right of access to a lawyer and the right to have a third party informed upon deprivation of liberty or the three 2016 directives. With Brexit, the situation is expected to become even more complex, since the United Kingdom has expressed interest in continuing to apply legal instruments on mutual recognition (including the EAW and the European Investigation Order(EIO)),16 but without being bound by the common set of rules for suspects and accused persons.17 These are the common elements constituting the general theory embodied in the six directives.18 The content specific to each directive will be analysed in the following sections.

15.3 Right to Interpretation and Translation: Directive 2010/64/EU The negotiation of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings19 was quite rapid, and resulted in an instrument granting suspected and accused persons who do not understand the language of the criminal proceedings concerning them the right to interpretation and the right to be provided with a written translation of essential documents. Member States agreed to meet the costs of interpretation and translations of criminal proceedings carried out in their territory, irrespective of the outcome of such proceedings. This agreement was in line with both ECtHR and CJEU case

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Prime Minister Theresa May´s speech at the 2018 Munich Security Conference on 17 February 2018, www.gov.uk/government/speeches. See B Leonard, ‘Judicial Cooperation with United Kingdom: Some References to the Consequences of Brexit’ and JM García Moreno, ‘Particularidades en el Reconocimiento y Ejecución de Órdenes Europeas de Detención y Entrega dirigidas al Reino Unido’ in A Gutiérrez Zarza (ed), Los Retos del Espacio de Libertad, Seguridad y Justicia de la UE en 2016 (Wolters Kluwer 2017). See also T Wilson, ‘The Implementation and Practical Application of the European Investigation Order in the United Kingdom: An Academic Perspective’ and L Benedict and A Gutiérrez Zarza, ‘Some Possible Consequences of Brexit in FSJ Area’ in A Gutiérrez Zarza (ed), El Espacio de Libertad, Seguridad y Justicia de la UE en 2017: Fiscalía Europea, Orden de Investigación, Protección de Datos y Recuperación de Activos (2018). Indeed, doubts have already been raised over the application of these instruments. See Case C-327/18 PPU RO EU:C:2018:733. It should be pointed out that the directives on translation and interpretation, on the right to information, on minors and on legal aid contain specific provisions on the training of judges, prosecutors, judiciary staff, law enforcement authority lawyers, and other actors involved in criminal proceedings, in order to ensure the effective application of the procedural rights. [2010] OJ L280/1.

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law.20 It was also contingent on the procedural nature of these rights, which are closely linked to the individuals subject to criminal proceedings and have nothing to do with the substantive discussions and decisions in the cases.

15.3.1

Legal Requirements

The determinative condition entitling a suspect or accused person to interpretation and translation is that they do not speak or understand the language of the criminal proceedings concerned. This covers both difficulties caused by the language and problems of understanding resulting from hearing or speech impediments.21 Member States have to put in place a means of ascertaining whether suspects are able to speak and understand the language of the criminal proceedings.22 To this end, and in order to determine the complexity of the language of the criminal proceedings, the nature of the facts and any possible communication that may be addressed by the court to the suspect or accused person must be taken into consideration. The judicial authorities of the Member States are responsible for assessing the suspect’s or the accused’s level of understanding of the language of the proceedings. Any doubt must be resolved by granting the person the right to interpretation and/or translation. If the judicial authority overrules the right or if the interpretation or translation is of an insufficient quality to safeguard the fairness of the proceedings, the suspect or accused person must be allowed to challenge its decision or complain of the quality of the service.23 The rights affirmed in this directive must be upheld by the competent judicial authority (including prosecution services) or investigative authorities (including during police questioning or any other hearings before competent authorities) from the moment the individual is suspected of having committed a crime. The right to interpretation must be provided without delay, and any postponement must be examined in the light of the particular circumstances of the case to determine whether it exceeded a ‘reasonable time’ and thereby compromised the fairness of the proceedings.24 In principle, the rights to interpretation and translation cover all the stages of criminal proceedings, including any possible appeals. The directive establishes a clear distinction between the right to interpretation and the right to translation of essential documents. This approach is undoubtedly correct, because both rights, although frequently exercised jointly, are conceptually different and require different skills. Hence, interpretation is focused on oral communication

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Luedicke, Belkacem and Koç v Germany, Apps nos 6210/73, 6877/75 and 7132/75 (ECtHR, 10 March, 1980); Case C-274/96 Bickel and Franz EU:C:1998:563. 22 23 Dir 2010/64/EU (n 19) recital (17), art 2(3). ibid art 2(4). ibid art 2(5). This issue was clarified by the CJEU in Case C-612/15 Kolev, Hristov and Kostadinov ECLI:EU:C:2018:392. ECtHR case law on this matter, which started with Wemhoff v Germany (27 June 1968), is also particularly relevant.

Defence Rights and Effective Remedies in Criminal Law

and the interpreter’s role is essentially to reproduce in real time the message delivered by the speaker while taking account of the contextual circumstances (gestures, body language, visual contact). Translations, on the other hand, are consigned to written documents, and special attention is paid to the context of the legal system concerned. Furthermore, their force varies too, in that the former is absolute and cannot be waived, while the latter can be qualified by certain limitations.

15.3.2 Interpretation Language assistance by a professional must be ensured in the mother tongue of the individual concerned, or in any other language that they understand or speak correctly. It must be present from the beginning of criminal proceedings until their completion. The scope of this right is extremely broad, extending to any procedural activity,25 declaration or hearing undertaken in criminal proceedings. The directive expressly mentions that this right covers all communications between suspects or accused persons and their legal counsel that are directly connected with any questioning or hearing during the proceedings, or with the lodging of an appeal or other procedural applications, whenever interpretation is needed to ensure the fairness of the proceedings.26 This was one of the most controversial points during the negotiation of the directive, due to differences between Member States’ legal systems and the likelihood of an increase in their costs. The final draft states that interpretation must be provided for any communication with the lawyer ‘in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal’, as well as for ‘other procedural applications’. The vagueness of this latter reference was the cause of a preliminary ruling, in which the CJEU advocated a restrictive reading of the expression, covering only procedural activities and oral hearings.27 On the question of whether an objection to a penalty order28 written in the mother tongue of the accused had to be translated, at the Member State’s expense, into the language of the proceedings, the Advocate General answered yes, considering such a document to be covered by Article 2(2),29 while the Court decided that it fell under Article 3, which covers only translations into the suspect’s or accused person’s native language. The Court, however, left open the possibility that a document such as the written objection presented by Covaci could come within the scope of

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All investigative acts carried out in the presence of the suspect or accused person, at which their lawyer must be present, also require the assistance of an interpreter. Dir 2010/64/EU (n 19) art 2(2), recitals (19), (20). Case C-216/14 Covaci EU:C:2015:686 (diverging from the Opinion of AG Bot, EU:C: 2015:305). A penalty order is a provisional decision informing the accused of the charges against them and imposing a fine in the case of minor offences. Case C-216/14 Covaci EU:C:2015:305, Opinion of AG Bot.

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Article 3(3) if, having regard to the characteristics of the procedure applicable to the penalty order, the competent national judicial authority decides that it qualifies as an essential document of the proceedings. In general terms, the right to interpretation requires the interpreter to be physically close to the suspect or accused person. However, the directive allows for the use of videoconferencing, telephone or the Internet.30 This possibility will be extremely useful for minority or rare languages.

15.3.3 Translation of Essential Documents The right to the translation of essential documents implies that when the suspect or accused person does not understand the language of the criminal proceedings, the Member States must guarantee that, within a reasonable period of time, they are provided with a written translation of all the documents essential to exercising the right of defence and safeguarding the fairness of the proceedings.31 The directive has established a dual criterion for determining documents that are ‘essential’ to exercising the right to defence. On the one hand are documents considered essential per se, which must be translated at all times.32 On the other hand, the directive allows competent authorities to consider as ‘essential’ any other document that is the subject of a reasoned request from the individual or their lawyer.33 As an additional limitation, the directive clarifies that there is no need to translate passages of essential documents, if they are not relevant for the purposes of enabling the suspected or accused persons to have knowledge of the case against them.34 This will require a decision from the judicial authority. Normally, the translation must be delivered in writing, although, exceptionally, the suspect or accused person may receive an oral translation or an oral summary of the essential documents, provided that this does not prejudice the fairness of the proceedings35 and that the fact has been recorded in accordance with the Member State’s law.36 In any event, the translation must be of a sufficient standard to safeguard the fairness of the proceedings.37 Unlike the right of interpretation, the right to translation may be waived, provided that the suspect or accused person has received prior legal advice or has otherwise obtained full knowledge of the consequences of such a waiver, and that the waiver is unequivocal and given voluntarily.38 Any waiver must be made in the presence of a lawyer, Moreover, the directive requires its occurrence to be

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31 32 Dir 2010/64/EU (n 19) art 2(6). ibid art 3. ibid arts 3(2) and (6). ibid art 3(3). For instance, the CJEU has treated as an essential document a penalty order issued following a simplified unilateral procedure imposing on the addressee a fine for a minor offence. Case C-278/16 Sleutjes EU:C:2017:757. 35 36 37 Dir 2010/64/EU (n 19) art 3(4). ibid art 3(7). ibid art 7. ibid art 3(9). ibid art 3(8).

A

Defence Rights and Effective Remedies in Criminal Law

recorded.39 Despite the clarity of this obligation, the TRAINAC study pointed out that most Member States had not paid particular attention to it.

15.3.4 Quality of Interpretation and Translation The insistence of the European legislator on the need to ensure the quality of both interpretation and translation is commendable, and a step forward on the path opened by the ECHR. Beyond the mere requirement to have recourse to an interpreter, the directive sets out two mechanisms imposing particular obligations on Member States in this regard. At a preventive level, the directive requires the adoption of measures to control interpreters’ and translators’ levels of qualification,40 and to create a register (or registers) of independent interpreters and translators who are appropriately qualified and to give lawyers and competent authorities access to the register(s).41 Besides this general reference to qualification, the directive does not indicate what information must be included in the register(s) or the training required of interpreters and translators. At a remedial level, the Member States must set up a mechanism that, in the event the interpretation or translation falls short of the required quality, enables the suspect, the accused person or the person who is the subject of an EAW to present a claim in order to safeguard the fairness of the criminal proceedings,42 which may necessitate the replacement of the interpreter.43 The recording of the procedural act will be the appropriate instrument enabling, where necessary, the integrity of the transcriptions and their admissibility as evidence in criminal proceedings to be verified. As mentioned in the conclusions to the TRAINAC study, Member States have not paid attention to the above-mentioned legal obligations, which points to a lack of human and technical resources permitting the appropriate exercise of the right to interpretation and translation, as well as a general lack of quality and control measures to ensure that appropriate standards are met.

15.3.5 Consequences of Infringement Although the directive does not mention what consequences the infringement of any of these rights will have, the obligation placed on Member States to set up a mechanism for reporting any violation prejudicing the fairness of criminal proceedings clearly implies that any procedural acts carried out without fully respecting the right to interpretation and translation of sufficient quality will make them null and void. Their nullity, which must be clearly distinguished from a mere irregularity, must apply from the moment the infringement of the guarantees 39

ibid art 7.

40

ibid art 5(1).

41

ibid art 5(2).

42

ibid arts 2(5), 3(5).

43

ibid recital (26).

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relating to interpretation and translation has an impact on the suspect’s or accused person’s right of defence.

15.4

Right to Information: Directive 2012/13/EU

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings44 lays down minimum rules on the provision of basic information to suspects concerning their procedural rights and to accused persons concerning the charges against them and their right of access to case-related documents in the possession of the competent authorities considered essential for challenging the accusations effectively. The guiding principles and scope of this directive have already been examined. As regards its content, the directive has three main axes,45 which are described below.

15.4.1

Right to Information on Procedural Rights

According to Article 3 of the directive, the information provided to suspects and accused persons must cover at least the right of access to a lawyer, any entitlement to free legal advice, the right to be informed of the accusation, the right to interpretation and translation, and the right to remain silent, which enables an individual to exercise their right not to incriminate themselves. Information concerning these procedural rights must be provided promptly in the course of the proceedings and, at latest, before the first official interview of the suspect or accused person by the police or by other competent authority.46 As regards form, the information must be supplied in a clear and accessible manner (taking account of the age and maturity of the recipient), and in a language that can be understood, whether spoken or written.

15.4.2 Arrested or Detained Individual’s Right to Information The directive includes provisions specifically addressing the right to information in situations of a deprivation of liberty. The information must be provided in simple and accessible language and in writing.47 The directive requires that individuals 44 45

46 47

[2012] OJ L142/1. For more detailed and very practical treatment, see ‘Arrest Rights Brief No. 2: The Right to Information’ (2013) 4 New Journal of European Criminal Law 340. Dir 2012/13/EU (n 44) recital (19). Considering the improbability of police stations having the Letter of Rights in languages other than the official languages of the EU, Article 4(4) of the directive allows information to be provided orally in the appropriate language, on condition that such information is provided in writing at a later stage and recorded (art 8(1)).

Defence Rights and Effective Remedies in Criminal Law

deprived of liberty must be given a ‘Letter of Rights’ and allowed to keep it in their possession for the duration of the deprivation of liberty. The letter, for which a model is annexed to the directive, includes the rights listed in Article 3, plus some others. It also alerts the detained person to the possibility of challenging the lawfulness of the arrest, obtaining a review of the detention, or making a request for provisional release. The issuance of the letter must be recorded in accordance with the Member State’s law.48 On the whole, the content of the directive is appropriate; however, Fair Trials49 suggests that it should be clarified and that greater emphasis should be put on the main procedural rights, without forfeiting its exhaustivity. It also recommends using terminology that would be more comprehensible to individuals not familiar with legal language.

15.4.3 Information on the Accusation and the Right of Access to Case Materials The directive affirms the right to be informed of the charges – a means of safeguarding the fairness of the proceedings and the effective exercise of the rights of the defence – and distinguishes between the situations of suspects and accused persons. As regards suspects, the directive affirms the right to be informed of the acts they are suspected of having committed or, if such be the case, the reasons for their arrest. If they have been arrested, they are entitled to have access to the case materials in the possession of the competent authorities that are essential to challenging the lawfulness of the detention. This is a crucial to countering the inertia of certain police practices, notably the tendency to provide incomplete information about the rights of arrested suspects in police stations (in particular, the failure to provide any information about the suspect’s right to challenge the detention to be given access to the police file).50 The information provided must be noted by police or judicial authorities in accordance with the record-keeping procedure in the Member State concerned, and the suspects and accused persons, as well as their lawyers, must be given the right to challenge any failure or refusal by the competent authorities to provide information.51

48 49

50

Dir 2012/13/EU (n 44) art 8(1). Fair Trials, ‘Understanding Your Rights in Police Custody: The European Union’s Model of Letters of Rights’ (31 March 2017), www.fairtrials.org/publication/understanding-your-rights-policecustody. 51 TRAINAC report (n 7) 35–58. Dir 2012/13/EU (n 44) art 8.

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As far as accused persons are concerned, they must be informed promptly (no later than when the merits of the accusation are submitted to a court) of any charges, including the nature and legal classification of the criminal offence they are accused of having committed. They must also be immediately informed of any changes in the information previously given to them,52 which here must be understood as any change in the accusation.53 In this way, the suspected or accused person can react accordingly to defend their position. The information must be provided in a manner that allows the person concerned to respond effectively to any change in the description and legal classification of what they are accused of Promptness must also be observed when guaranteeing the right of (free) access to case materials,54 including all essential case-related documents in the possession of the competent authorities. Access to certain materials may be refused if it poses a serious threat to the life or the fundamental rights of another person, or if refusal is strictly necessary to safeguard an important public interest, as where there is a risk that an ongoing investigation could be prejudiced or that serious harm could be caused to the national security of the Member State in which the criminal proceedings have been initiated. The CJEU has had occasion to rule on the manner in which this information must be provided and how far in advance.55 It did so in relation to German simplified procedures resulting in the adoption of penalty orders imposing fines. It insists that the necessary information must be provided so as to allow the accused person to exercise their right of defence. In Covaci, the Court recognised the validity of an accusation served on a non-resident defendant through a person authorised to accept service, but ruled that the period for lodging an objection must not be curtailed; in other words, the prescribed period must run from when the accused person actually became aware of the accusation, not from the moment when the accusation was served on the person authorised to accept service on their behalf. In Tranca, Reiter and Opria, the Court emphasised that an accused person upon whom an order had not been served personally must be given the full amount of time allowed for lodging an objection against the penalty order, for the objection represents the first and only opportunity for the accused to exercise their right of defence in the simplified penalty order procedure. Not only are the competent authorities forbidden to reduce the period allowed for lodging an objection by the time taken by the person authorised to receive notice of the order to transmit it to its addressee, but the accused person is also entitled

52 55

53 54 ibid art 6(4). Case C-646/17 Moro EU:C:2019:489. Dir 2012/13/EU (n 44) art 7. Case C-216/14 Covaci EU:C:2015:686; Joined Cases C-124/16, C-188/16 and C-213/16 Tranca, Reiter and Opria EU:C:2017:228.

Defence Rights and Effective Remedies in Criminal Law

to have their position restored to the status quo ante where this is necessary to guarantee the right to lodge an objection. The CJEU has been particularly clear in this regard. While acknowledging that the directive makes no reference to a precise moment from which these rights can be claimed, the Court has stated that, considering their aim (effective exercise of the right of defence), that moment must precede the commencement of the hearing on the merits of the charges in the competent court, and that sufficient time must always be allowed for the rights to be fulfilled, even where there is a subsequent amendment (eg to the legal classification) requiring new information and further access. National courts must satisfy themselves that the defence has been given a genuine opportunity to access the case materials.56

15.5 Right of Access to a Lawyer: Directive 2013/48/EU The Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty57 contains minimum rules concerning the right of access to a lawyer and the right to have a third party informed of the deprivation of liberty, as well as to be able to communicate with them while deprived of liberty as a result of criminal and EAW proceedings. Although the two fundamental rights are closely related to each other, their inclusion in a single EU legal instrument was not foreseen in the Roadmap or in the proposal for a directive on the right of access to a lawyer presented by the Commission. The Roadmap grouped the right of access to a lawyer and the right to legal aid together, but each was then the subject of separate proposals. It did so to avoid complex negotiations among Member States given the substantial differences in their legal systems. Consequently, the EU legislator decided to focus discussions on the right of access to a lawyer58 and left the right to legal aid for a later directive. That said, Article 11 of Directive 2013/48/ EU mentions that legal aid ‘shall apply in accordance with the Charter and the ECHR’.

56 58

57 Case C-612/15 Kolev EU:C:2018:392. [2013] OJ L294/1. However, this proposal for a directive was criticised by several Member States. See C Heard and R Shaeffer, ‘Making Defence Rights Practical and Effective: Towards an EU Directive on the Right to Legal Advice’ (2011) 2 New Journal of European Criminal Law 270.

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15.5.1

Right of Access to a Lawyer

The right of access to a lawyer is the most relevant aspect of the directive. The need to establish minimum standards on this right was absolutely necessary to ensure the fairness of proceedings and fundamental aspects of the defence. There were considerable differences between Member States on this matter, yet the need to preserve legal traditions did not legitimise rules and practices that were not in line with procedural fairness enshrined in Article 6 ECHR.59 Articles 3, 4 and 11 of the directive affirm the right of access to a lawyer in such a way as to allow the persons concerned to exercise the right of defence effectively60 and in a broad context. Their main achievement was to determine the moment from which the right must be safeguarded and its minimum content. Far from using vague expressions, the directive identifies four specific situations and affirms the right to a lawyer from the moment whichever of these occurs first.61 In the context of an EAW, the right of access to a lawyer must be guaranteed from the moment the arrest occurs pursuant to the EAW. The directive affirms the right of arrested persons to a double defence, as they will have the right to a lawyer in the executing Member State and also, when requested, in the issuing Member State. This is a new and reinforced guarantee, aimed specifically at strengthening the right to an effective defence during a hearing, when a plea for non-execution of the EAW or for the person’s surrender to be subject to conditions may be presented to the competent executing authority. The directive also describes the content of this procedural right. It entails the possibility of communicating immediately with the lawyer and having a meeting in private, which may precede questioning by the police or other law enforcement or judicial authority. In this regard, Article 4 of the directive underlines the obligation of Member States to ensure the confidentiality of any communications between suspects or accused persons and their lawyers. Furthermore, the right to a lawyer entails the right for the lawyer to be present at hearings and to participate effectively when questioned (such participation must be noted in accordance with the record-keeping procedure in the Member State concerned). The lawyer must also be present during at least three specific investigative measures (identity parades, confrontations and reconstructions of the scene of a crime), 59

60

61

It may suffice to recall ECtHR case law on infringement of the right of access to a lawyer in cases such as John Murray v United Kingdom App no 18731/91 (8 February 1996) and Brusco v France App no 1466/07 (14 October 2010). In Case C-612/15 Kolev EU:C:2018:392, it was held that national legislation allowing the dismissal of the lawyer instructed by two accused persons on the ground that there was a conflict of interest between them in the case was in accordance with the directive, since it helped to the effectiveness of this right as the lawyer could hardly defend both accused persons fully and effectively. Dir 2013/48/EU (n 57) art 3(2).

Defence Rights and Effective Remedies in Criminal Law

whenever national law provides for such measures and the presence of the suspect or accused person is required. The right to a lawyer may be waived. The waiver must be given voluntarily and unequivocally, after the suspect or accused has been given clear and sufficient information about the possible consequences of doing so, and the waiver may be revoked it at any point during criminal proceedings. The extensiveness of these provisions on the right of access to a lawyer may be limited in situations of urgency, for example by means of temporal derogations62 or restrictions on their content,63 notably in the event of terrorism. Although subject to conditions, such derogations remain quite vague and could be a source of infringement of this fundamental right through procedural acts carried out without the defence of a lawyer.64 According to the TRAINAC report, the directive has on the whole been transposed correctly in Member States, although certain aspects need to be improved, such as the right of access to a lawyer in police stations65 and to police files, which, at least during the initial period of application of the Directive, was not easily or fully ensured.66

15.5.2 Right to Inform about a Deprivation of Liberty and to Communicate while Deprived of Liberty Consistent with the Vienna Convention on Consular Relations of 24 April 1963, the directive affirms the right to inform about a deprivation of liberty and the right to communicate while deprived of liberty, each of which applies in different situations. First, suspects and accused persons have the right to inform a third person without undue delay about their having been deprived of liberty, be it a relative, an employer or, if the person is a non-national, a consular authority. Suspects and accused persons possessing two or more nationalities are entitled to choose which consular authority, if any, is to be informed of the deprivation of liberty and with which they wish to communicate. Second, while deprived of their liberty, suspects and accused persons have the right to communicate with any of the above-mentioned third persons. The directive does not make any reference to the right to receive visits in detention, even though it is considered a relevant aspect of the right to family and private life.67

62 64

65

66

63 ibid art 5(3). ibid art 3(6). ibid recitals (31) and (32). See Amnesty International and Others, ‘Joint Briefing on the Directive of the Right of Access to a Lawyer in Criminal Proceedings and the Right to Inform a Third Party upon Deprivation of Liberty’ (2013) 4 New Journal of European Criminal Law 334. See E Cape and J Hodgson, ‘The Right of Access to a Lawyer at Police Stations: Making the European Union Directive Work in Practice’ (2014) 5 New Journal of European Criminal Law 450. 67 TRAINAC report (n 7) 58–93. Amnesty International (n 64) 336.

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15.6

Presumption of Innocence and Right to be Present at Trial: Directive (EU) 2016/343

Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings68 was criticised when first presented as a proposal. Among other reasons, this was because it covered the right to be present at trials in absentia and the right to a new trial, which were not in the Roadmap, other than through an implicit risk of overlap (if not conflict) with Framework Decision 2009/299/JHA on mutual recognition of judicial decisions rendered in the absence of the person concerned at trial.69 The directive differs from the roadmap insofar as its provisions set out general principles of law rather than providing the procedural framework for the protection of the rights of the suspect or accused person. This raises a number of challenges in relation to the effective transposition and implementation of the directive, not least because most Member States already recognise and protect the presumption of innocence in law and might be reluctant to reform their domestic legislation. The general principles concerning the personal, material and temporal scope explained in Section 15.2 apply to this directive, although with certain nuances. According to Recital (14) of the directive, legal persons are excluded from its scope; however, Recital (15) contemplates the possibility of Union action with regard to legal persons depending on the evolution of case law. Recital (11) and Article 2 limit the directive’s material scope of application to criminal proceedings. Finally, the directive’s temporal scope of application is different insofar as, according to Article 1 and Recital (12), the presumption of innocence must be guaranteed prior to official notification of the charges. The two most salient aspects of the directive (presumption of innocence, right to be present at trial) are analysed below.

15.6.1

Presumption of Innocence

Chapter 2 of the directive defines the presumption of innocence in similar terms to Article 6(2) ECHR and Article 48(1) of the Charter. The common minimum rules are set out in four provisions reflecting the two facets of the presumption of innocence as a rule regarding treatment and a rule for criminal proceedings.

68 69

[2016] OJ L65/1. Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/24.

Defence Rights and Effective Remedies in Criminal Law

The right to be treated by public authorities with full respect for the presumption of innocence implies that references made in public statements or judicial decisions must not include any mention of the person as being guilty ‘for as long as a suspect or an accused person has not been proved guilty according to law’.70 In order to make this effective, Member States must have appropriate measures available, in the event of a breach of the presumption of innocence as a rule of treatment, to ensure that suspects and accused persons are not presented as being guilty.71 This should be without prejudice to acts of the prosecution or preliminary decisions (formal accusation, precautionary measures) of a procedural nature aimed at determining the culpability of the suspect or ensuring their possible responsibility.72 Decisions on pre-trial detention are a case in point. The complexity of their harmonisation with the legal principle of presumption of innocence has led to three decisions by the CJEU concerning the same case.73 In Milev II, the Court held that Directive 2016/343 did not preclude the adoption of preliminary decisions of a procedural nature, such as a decision by a judicial authority that pre-trial detention should continue. Such decisions should not refer to the person in custody as being guilty and the directive should not be applicable to the circumstances in which decisions on pre-trial detention may be adopted. In Milev III, the Court focused on the notion of reasonable suspicion; it held that Articles 4 and 6 of the directive, read together with Recital (16), must be interpreted as meaning that the requirements deriving from the presumption of innocence do not prevent the Court from comparing the elements of incriminating and exculpatory evidence presented to it and giving reasons for its decision. In doing so, the Court will not only indicate the evidence on which it relied, but also rule on the objections of the defence counsel of the person concerned, provided that its decision does not present the person detained as being guilty. The burden of proof incumbent on the prosecution and the benefit of the doubt in favour of the suspect or accused person are affirmed in Article 6 of the directive, which was one of its most controversial provisions during negotiations. In the course of the discussions, the introduction of a derogation transferring the burden of proof to the defence was contemplated. Fortunately, this derogation was in the end not included in the text. However, Recital (22) acknowledges the possibility of ‘presumptions of fact or law concerning the criminal liability of a

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Dir (EU) 2016/343 (n 68) art 4(1); see Case C-377/18 AH and Others EU:C:2019:670, para 50. 72 ibid arts 4 and 5. ibid recital (16). Case C-439/16 PPU Milev I EU:C:2016:818; Case C-310/18 PPU Milev II EU:C:2018:732; Case C-8/19 PPU-RH Milev III EU:C:2019:110.

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suspect or accused person’, provided they are ‘confined within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence, and the means employed [are] reasonably proportionate to the legitimate aim pursued’. The rights to remain silent and not to incriminate oneself are affirmed in Articles 7 and Recitals (25)–(32), (44) and (45) of the directive. Both of them are conceived as absolute rights. Moreover, they are interrelated, so any coercion to obtain incriminating evidence also constitutes a violation of the right to keep silent. The directive qualifies the general rule, by acknowledging that ‘[t]he exercise of the right not to incriminate oneself shall not prevent the competent authorities from gathering evidence which may be lawfully obtained through the use of legal powers of compulsion and which has an existence independent of the will of the suspects or accused persons.’74 Such evidence would include, for instance, ‘material acquired pursuant to a warrant, material in respect of which there is a legal obligation of retention and production upon request, breath, blood or urine samples and bodily tissue for the purpose of DNA testing’.75 The right to keep silent and the right not to incriminate oneself cannot be used against a suspect or accused person and should not in themselves be considered evidence that the person concerned has committed the criminal offence. In taking this approach, the directive distances itself from the controversial case law of the ECtHR, which has acknowledged the possibility of drawing negative consequences from the fact that an accused person remains silent.76 There is a notable lack of references to the consequences of gathering evidence in violation of the right not to incriminate oneself and to remain silent, despite the importance of such breaches in the context of criminal proceedings and the fact that they were present in the initial proposal for the directive. The final text refers to this matter unsystematically in Articles 10(2) (on remedies) and Recital (45).

15.6.2

Right to be Present at Trial

The right of accused persons to be present at trial must be upheld by the Member States. However, q trial can be held in their absence and result in a decision regarding guilt, provided that certain safeguards are respected. In particular, the accused person must be informed in due time of the trial and of the consequences of non-appearance, and they must be represented by a mandated lawyer appointed by the accused person or by the state. Whenever these safeguards have not been

74 76

75 Dir (EU) 2016/343 (n 68) art 7(3). ibid recital (29). See John Murray v United Kingdom (n 59).

Defence Rights and Effective Remedies in Criminal Law

respected, the accused person must be given the opportunity to challenge the decision and to have a new trial or another legal remedy.77 Lastly, the directive allows this procedural right to be qualified: a suspect or accused person may be temporarily excluded from the trial the proper conduct of the criminal proceedings so requires. The directive also contemplates the possibility of certain proceedings or stages of the proceedings being conducted in writing.

15.7 Procedural Safeguards for Children: Directive (EU) 2016/800 Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings78 covers a particular group of vulnerable individuals, namely, minors.79 Although Measure E of the Commission’s roadmap did not only cover children, approval was given for a directive specifically on minors (other vulnerable groups being protected through provisions adjusting some of the directives to their particular needs80). The EU legislator gave special attention to minors in view of the considerable differences among the legal systems of the Member States in this area, including on the age of criminal liability. One of the directive’s achievements was precisely to consider as minors individuals who had committed a criminal offence as children but had reached the age of eighteen when they became suspects or accused persons. The procedural rights and guarantees affirmed in this directive apply in such cases, irrespective of whether this is the basis on which national legislation determines criminal responsibility.81 The final sentence of Article 3 contains a presumption of underage status, according to which ‘where it is uncertain whether a person has reached the age of 18, that person shall be presumed to be a child’ (although Recital (13) mentions certain conditions applying to this presumption). The directive also encourages Member States to apply the procedural safeguards provided for minors to those who committed criminal offences under the age of eighteen and reach that age in the course of the criminal proceedings, until they reach the age of twenty-one.82 The purpose of the directive is to establish common minimum rules for certain rights of minors who are suspects or accused persons in criminal proceedings

77 78 79

80 81

Such possibilities were incorporated in Council Framework Decision 2009/299/JHA. [2016] OJ L1321. On this instrument, see S Crass, ‘The Directive on Procedural Safeguards for Children Who Are Suspects or Accused Persons in Criminal Proceeding: Genesis and Descriptive Comments relating to Selected Articles’ [2016] Eucrim 109. See eg Dir 2012/13/EU art 3(2); Dir 2013/48/EU art 13; Dir 2016/1919/EU art 9. 82 Dir (EU) 2016/800 (n 78) arts 2(5) and 3(1). ibid art 2(3), recitals (11) and (12).

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or are subjects of EAW proceedings, so as to ensure that they are able to understand and follow these proceedings and to exercise their right to a fair trial, as well as to prevent children from re-offending and foster their social integration.83 Surprisingly, the directive does not make any reference to the need to use language appropriate to the minor. The particular procedural rights laid down in the directive are as follows: provision of information in general terms, including the right of the child to have the holder of parental responsibility informed;84 access to a lawyer and to legal aid;85 individual assessment and a medical examination;86 the audiovisual recording of questioning;87 specific safeguards regarding the deprivation of liberty, which must be limited to the shortest appropriate period of time and be considered a measure to be employed only as a last resort88 and subject to periodic review;89 the case being dealt with in a timely and diligent manner;90 appearing in person at and participating in their trial;91 being accompanied by the holder of parental responsibility during the proceedings;92 and, finally, the right to protection of privacy.93

15.8

Legal Aid: Directive (EU) 2016/1919

Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings94 is a good example of the rocky road travelled by EU institutions and Member States in complying with the Roadmap. Initially intended to be part of Directive 2013/48/EU, the right to legal aid was in the end established only three years later in Directive (EU) 2016/1919.95

83 87 88

89 91

92 95

84 85 86 ibid art 1, recital (1). ibid arts 4, 5, 17. ibid arts 5, 17, 18. ibid arts 7, 8, 17. ibid art 9. Case C-367/16 Piotrowski EU:C:2017:636, Opinion of AG Bot, who considered that in the criminal law relating to minors punishment was secondary and education should take precedence. This feature of criminal law relating to minors had such weight that, in his opinion, it was a matter of fundamental rights. 90 Dir (EU) 2016/800 (n 78) arts 10, 12, 17. ibid arts 13, 17. ibid art 16. It would have been appropriate to include an explicit reference to the child’s right to be heard affirmed in Article 12.2 of the Convention on the Rights of the Child. which must not be limited – as Article 16 of the directive seems to imply – to the trial stage. In this regard, see Iglesias Casarrubios y Cantalapiedra v Spain App no 23298/12 (ECtHR, 11 October 2016). 93 94 Dir (EU) 2016/800 (n 78) arts 15, 17. ibid arts 14, 17. [2016] OJ L297/1. On the difficulties encountered during negotiations, see S Crass, ‘The Directive on the Right to Legal Aid in Criminal and EAW Proceedings: Genesis and Description of the Sixth Instrument of the 2009 Roadmap’ [2017] Eucrim 34.

Defence Rights and Effective Remedies in Criminal Law

The directive establishes common minimum rules on legal aid for suspects and accused persons who have the right of access to a lawyer pursuant to Directive 2013/48/EU and who are deprived of liberty, required to be assisted by a lawyer in accordance with Union or national law, or required or permitted to attend an investigative or evidence-gathering act. These common minimum rules also apply to requested persons under the EAW procedure who have a right of access to a lawyer from the time of their arrest in the executing Member States, as well as to those individuals who were not initially suspects or accused persons but become so in the course of questioning by the police or by another enforcement authority.96 Although the directive clearly states that it covers criminal and EAW proceedings, it makes certain distinctions reducing the level of protection in relation to minor offences, as do other directives on procedural rights. The Directive does not mention that is applicable to legal persons, but nothing in the text suggests that the legislator intended that legal persons should be excluded from its scope.97 Legal aid is defined as the funding by a Member State of the assistance of a lawyer for suspects, accused and requested persons, enabling the exercise of the right of access to a lawyer.98 In the context of criminal proceedings, Member States must ensure that suspects and accused persons who lack sufficient resources have the right to legal aid when in the interests of justice. To this end, the directive lays down the requirements analysed below. First, the decision to grant legal aid must be made diligently and, at the latest, before any questioning by the police or other law enforcement or judicial authority, or before the investigative or evidence-gathering acts are carried out (identity parades, confrontations or reconstructions of the scene of a crime). Second, Member States have the obligation to implement an evaluation mechanism, which may take the form of a means test, that takes into account relevant objective factors such as the income, capital and family situation of the person concerned, or a merits test that assesses the real need of legal assistance in light of the circumstances of the case.99 For the merits test, the directive takes into consideration ECtHR case law on the ‘interests of justice’ as the key factor determining whether legal aid must be granted to ensure the fairness of the criminal proceedings. Also in line with this case law, the directive establishes that legal aid must always be granted where a suspect or accused person is brought before a competent court for a decision on detention at any stage of the proceedings and during such detention. The right to legal aid does not rule out the ability of the competent

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Dir (EU) 2016/1919 (n 94) art 2. M de Hoyos Sancho, ‘Sobre la Necesidad de Armonizar las Garantías Procesales en los Enjuiciamientos de Personas Jurídicas en el ámbito de la Unión Europea. Valoración de la Situación Actual y Algunas Propuestas’ (2017) 43 Revista General de Derecho Procesal 34. 99 Dir (EU) 2016/1919 (n 94) art 3. ibid art 4.

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authorities in Member States to require individuals to bear their defence costs themselves (totally or partially) depending on their financial resources.100 Third, the decision on whether or not to grant legal aid must be adopted without undue delay and the individual concerned must be informed in writing.101 In the event of a violation of the right to legal aid, the individuals concerned must have an effective remedy.102 Lastly, the legal aid system must be effective and the services provided must of a sufficient standard. To this end, Member States must ensure that staff involved in decision-making on legal aid and lawyers have appropriate training, and that measures are in place to allow the lawyer initially designated to be replaced, at the request of the suspect or accused person, where the specific circumstances of the case justify this.103 As regards legal aid in EAW proceedings, the executing Member State must guarantee this right from the moment the requested person is arrested until they are surrendered, or until the decision not to surrender them becomes final.104 If the individual has requested the assistance of a lawyer in the executing Member State pursuant to Directive 2013/48/EU, they must be entitled to legal aid in the issuing Member State for the purpose of such proceedings, in so far as legal aid is necessary to ensure effective access to justice.105 In the context of EAWs, the possibility to apply a means test must be taken into consideration, as well as the particular circumstances of the EAW proceedings. The directive’s recitals contain clarifications relevant to ensuring that it is properly interpreted. For instance, Recital (18) refers to practical arrangements to be adopted by Member States, such as providing that legal aid will be granted following a request by a suspect, accused or requested person, although the granting of legal aid to vulnerable persons should not be conditional upon the submission of such a request.

15.9 The Way Forward The step-by-step implementation of the Roadmap clearly shows the Union’s determination to take legislative action at supranational level, beyond the legal systems of the Member States, in order to develop efficient mechanisms for judicial cooperation while reinforcing mutual trust and the mutual recognition of judicial decisions and ensuring harmonisation of procedural rights and guarantees at EU

100 104

ibid recital (8) refers to this possibility. 105 ibid art 5. cf ibid recital (21).

101

ibid art 6.

102

ibid art 8.

103

ibid art 7.

Defence Rights and Effective Remedies in Criminal Law

level.106 The directives on procedural rights107 now represent a reference point for procedural guarantees and should be regarded as an integral part of the protection afforded under Art. 48(2) of the Charter.108 The final achievements are not as important as initially expected, and in certain cases initial expectations were lowered to overcome difficulties faced along the way. However, the guarantees established by the directives definitely exceed those enshrined in the ECHR. The implementation of these directives has required some significant changes to Member States’ internal legal systems. The effects of this goal of harmonising national procedural laws and the improvements that have ensued are particularly evident in domestic criminal proceedings.109 Without belittling this achievement, academia has underlined certain gaps that may undermine mutual trust, such as the absence of common minimum rules for the gathering and admissibility of evidence in criminal proceedings, a field where there are significant differences among the legal systems of the Member States. The real added value of the EU mechanism for the protection of procedural rights compared to that of the Council of Europe lies in the provision of a clear definition of the protection afforded to these fundamental rights in cross-border cases, and the attention given to issues arising in relation to the gathering and admissibility of evidence. A future legal instrument on this matter would serve as a test bed for the purposes of organising judicial cooperation as more than just a repressive response.110 The EIO directive111 provides that the execution of an EIO may be refused in the event of a failure to respect fundamental rights as interpreted by the ECtHR and the Charter and as developed in the six directives analysed above. The entry into force of this legal instrument is a new opportunity to verify the extent to which mutual trust requires full respect of a minimum set of procedural rights for suspects and accused persons in Member States. 106

107

108 109 110

111

V Faggiani, Los Derechos Procesales en el Espacio Europeo de Justicia Penal (Aranzadi 2017) 199. There are no plans for a new set of measures to reinforce procedural rights, though it is important to continue with draft studies and to produce a directive on pre-trial detention. Allegrezza (n 6) 33. See Case C-646/17 Moro EU:C:2019:95, Opinion of AG Bobek, paras 38–44. R Kostoris, ‘La Tutela dei Diritti Fondamentali’ in R. Kostoris (ed), Manuale di Procedura Penale (Giuffrè 2014), 78, 79. Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1.

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Victims of Crime in the Area of Freedom, Security and Justice LUCA LUPÁRIA AND JACOPO DELLA TORRE

16.1 The Long March towards the Recognition of Victims’ Rights in the European Union Victims of crime have long been ‘forgotten persons’ in many modern criminal justice systems. In recent decades, however, the role of victims has undergone a radical change, especially through the efforts of international organisations. 1 At European level, a fundamental step was taken by the former institutions of the European Community, which engaged in an ambitious process to strengthen victims’ rights as far back as the 1980s. At a time when the European Community did not have competence over criminal matters, the European Parliament (EP)2 and the Court of Justice of the European Union (CJEU)3 emphasised the close relationship between the victim’s right to compensation and the principles of freedom of movement and non-discrimination.4 The 1990s saw another breakthrough when the newly named European Union set itself the goal of providing its citizens with a high level of security in the Area of Freedom, Security and Justice (AFSJ).5 Since then, the protection of victims of crime has been and remains a political priority for the EU. The so-called third pillar, which, among other powers, granted the EU competence over criminal matters, authorised the EU to pass legislation not only on compensation but also on criminal law and criminal procedure. It is thus no

1

2

3 4

5

This chapter is the result of joint research by both authors; Luca Lupária wrote Sections 16.1–16.3 and Jacopo Della Torre Sections 16.4–16.6. See M Cherif Bassiouni, ‘International Recognition of Victims’ Rights’ (2006) 6 Human Rights Law Review 203. See Resolution on compensation for victims of acts of violence, adopted by the EP on 13 March 1981; Resolution on compensation for victims of violent crimes, adopted by the EP on 12 September 1989. Case C-186/87 Cowan EU:C:1989:47. See V Mitsilegas, EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe (Hart 2016) 187. See European Parliamentary Research Service (EPRS), The Victims’ Rights Directive 2012/29/EU: European Implementation Assessment (2017) 7.

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coincidence that already in its early initiatives to build the AFSJ the EU expressed its intent to reinforce victims’ rights.6 In a relatively short period of time, the first series of specific measures were adopted under the third pillar, the most noteworthy of which was Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings.7 It should be pointed out that since the early years of the new millennium the EU has regulated this matter not only through the competences available under the third pillar but has also by leaning on the principle of free movement, through the adoption of Directive 2004/80/EC allowing cross-border crime victims to benefit from EU-funded compensation schemes. The strong European drive in favour of crime victims has not been followed by similar efforts in national legal systems, however. For instance, the transposition of Framework Decision 2001/220/JHA in Member States has been unsatisfactory.8 National judges, on the other hand, have been considerably more deferential with regard to European obligations. Indeed, they have submitted several requests for preliminary rulings in connection with Framework Decision 2001/220/JHA. This has enabled the CJEU to develop a large body of case law on this instrument.9 However, the fact that the Commission originally had no legal means of punishing Member States that did not implement framework decisions correctly, combined with the fact that the only form of coercion available to make up for the deficiencies of national lawmakers was the obligation to interpret national law in conformity with EU law,10 undermined the EU’s initial attempt to establish minimum standards of protection for victims. Against this background, it appears clear that the communitarisation of the former third pillar through the Treaty of Lisbon marked another historic turning point in this field.11 Article 82(2)(c) of the Treaty on the Functioning of the European Union (TFEU) granted the EU the power to adopt minimum standards through directives concerning ‘the rights of victims of crime’. Article 83 TFEU also granted the EU the power to enact, again by means of directives, minimum standards concerning the definition of certain offences and penalties. Since then, the EU has been able to carry out the desired reforms within a clear legal framework, in which the principle of mutual recognition has been permanently added to that of free movement – and even overridden it – as the standard justifying EU measures in support of victims’ rights. 6 7 8 9

10

Eg conclusions of the Tampere European Council of 15 and 16 October 1999, para 43. [2001] OJ L82/1. See COM (2004) 54 final; COM (2009) 166 final. See Case C-79/11 Giovanardi EU:C:2012:448; Case C-507/10 X and Y EU:C:2011:873; Joined Cases C-483/09 and C-1/10 Gueye and Salmerón Sánchez EU:C:2011:583; Case C-205/09 Eredics and Vassné Sápi EU:C:2010:623; Case C-404/07 Katz EU:C:2008:553; Case C-467/05 Dell’Orto EU:C:2007:395; Case C-105/03 Pupino EU:C:2005:386. 11 Pupino (n 9) para 34. EPRS,Victims’ Rights Directive (n 5) 10–11.

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The shift from framework decisions to directives has greatly increased the power of these EU provisions to penetrate domestic legal systems.12 This is because, on the one hand, directives enable the Commission to start infringement procedures against Member States that fail to implement them within the deadlines set, and, on the other hand, in addition to relying on the doctrine of consistent interpretation of EU law, individuals are entitled to seek the direct application of directives’ self-executing provisions in so-called vertical relationships. As a result, the CJEU has acquired full jurisdiction over the AFSJ. Equally fundamental was the upgrading of the Charter of Fundamental Rights of the European Union (CFR) through the Lisbon Treaty. Indeed, the new version of Article 6(1) of the Treaty on European Union (TEU) has turned the Charter from soft law into primary law, assigning it the same legal value as the Treaties. This is fundamental to the topic under examination here, since several provisions in the Charter ‘also provide “foundations” for the rights of victims’.13 The manifold rights enshrined in chapter 1 on the dignity of the human person are an example, as are Articles 6, 7 and 8 concerning, respectively, the right to liberty and security, respect for private and family life and the protection of personal data, and Article 24 relating to the protection of the child. As regards judicial rights, Article 47 CFR cannot be overlooked, since it accords everyone – victims of crime included – the ‘right to an effective remedy and to a fair trial’. In other words, this provision ensures that victims have access to a judge and a fair trial within reasonable time, as well as to legal aid. Therefore, under this Article of the Charter, ‘victims of crime not only enjoy the right to an effective remedy, which covers the wide range of rights of victims under Article 13 of the ECHR, but also fair trial rights’,14 (that is, all rights enshrined in Article 6(1) ECHR). Since the entry into force of the Lisbon Treaty, these (and other) Charter provisions, as primary EU law, must be complied with both by the EU legislator when regulating issues concerning victims of crime and by Member States ‘when they are implementing Union law’.15 Put differently, when implementing directives relating to victims, EU Member States must take into account both the provisions of the CFR and relevant ECtHR case law in the field.16

12

13

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S Allegrezza, ‘Victim’s Statute within Directive 2012/29/EU' in L Lupária (ed), Victims and Criminal Justice: European Standards and National Good Practices (Wolters Kluwer 2015) 5. C Mazzucato, ‘Victims of Corporate Violence in the European Union: Challenges for Criminal Justice and Potentials for European Policy' in G Forti and others (eds), Victims and Corporations: Legal Challenges and Empirical Findings (Wolters Kluwer 2018) 23. European Union Agency for Fundamental Rights (FRA), Victims of Crime in the EU: The Extent and Nature of Support for Victims (2015)28; see also, more recently, FRA, Victims’ Rights as Standards of Criminal Justice: Justice for Victims of Violent Crime (2019) pt I, 34. 16 CFR art 51. See CFR art 52(3).

Victims of Crime in the AFSJ

Given the inadequacy of the EU’s initial attempts to strengthen victims’ rights, it is not surprising that soon after the Treaty of Lisbon entered into force, European institutions manifested their intent to adopt new legislation in this field. The EP took a leading role by urging the Council to adopt ‘a comprehensive legal framework offering victims of crime the widest protection’.17 The will to intervene in this field was further affirmed first by the Council of the EU18 and then by the European Council, which, in the Stockholm Programme, called on the Commission and the Member States, among other things, to ‘examine how to improve legislation and practical support measures for the protection of victims’.19 It elicited an immediate reaction from the Commission:20 the reform process was subsequently accelerated through the adoption of the so-called Budapest Roadmap,21 in which the Council of the EU recognised that priority should be given to adopting measures strengthening victims’ rights. Given the joint efforts of all European institutions, it is little wonder that it took only a few years for the EU to put in place another batch of related measures. The following sections provide an overview of the current EU mechanisms designed to protect victims of crime. Particular attention will be paid to the stance taken by national legal systems when implementing EU minimum standards. It goes without saying that the success of harmonising fundamental rights mainly by means of directives largely depends on the attitudes adopted by Member States during implementation. A minimalist approach – one aimed at modifying domestic regulations as little as possible – significantly increases the risk that the abstract measures will have no concrete effect. For this reason, the implementation of directives needs to be supervised very closely. The final section looks towards the future by pointing to developments that will hopefully be introduced in the next few years to compensate for the lack of effectiveness that, in many cases, continues to characterise the rights of victims within the AFSJ.

16.2 Cross-Border Victims’ Right to Compensation As already mentioned, the right to compensation was the earliest form of protection established under European victims legislation. The main legal source of this right was Directive 2004/80/EC,22 which codified and developed the CJEU’s decision in Cowan, to which explicit reference is made in Recital (2). The directive’s primary aim is clear: as cross-border victims of violent intentional crimes 17 19

20

18 EP Recommendation A6-0262/2009, s Ab1(a). Council of the EU, doc 12944/09. ‘The Stockholm Programme – An open and secure Europe serving and protecting the citizens’ 2010/C 115/01, s 2.3.4. 21 22 COM (2011) 274 final. Council Resolution 2011/C 187/01. [2004] OJ L261/15.

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are often unable to obtain compensation from the offender,23 this constitutes an obstacle to free movement and should be overcome wherever possible. It is also well known that the EU’s goal of facilitating ‘access to compensation to victims of crimes in cross-border situations’24 represents an evolved understanding of the 1983 European Convention on the Compensation of Victims of Violent Crimes (ECCVVC).25 However, it should be borne in mind that the ratione personae scope of Directive 2004/80/EC is considerably broader than that of the ECCVVC, given that the former does not make access to its compensation scheme conditional upon the possession of EU citizenship, while the latter limits compensation to citizens of states that are either parties to the Convention or members of the Council of Europe. The directive provides for a cooperation mechanism that applies to all victims of violent intentional crimes – a notion that is not further defined in the directive – in cross-border situations (purely internal situations do not fall within its scope),26 so it covers victims who reside in the AFSJ but are not necessarily EU citizens. From a practical perspective, Directive 2004/80/EC laid down the basis for a mechanism allowing victims of violent intentional crimes in a country other than the one in which they are habitually resident to submit an application for compensation to a so-called assisting authority in their Member State of residence (Article 1). Under Article 2, compensation shall be paid by the competent authority of the Member State on whose territory the crime was committed when compensation cannot be recovered from the offender because they lack the necessary means or cannot be identified or prosecuted (Recital (10)). In short, one of the fundamental principles of Directive 2004/80/EC is that, upon return to their Member State of residence, anyone who suffers a violent intentional crime in the AFSJ shall be entitled, first, to apply for compensation for the harm they have suffered regardless of the EU country in which the offence was committed, and second, to be supported in the application process by a national authority. Regulating the procedural aspects of the application for compensation is not the sole purpose of the directive, however. Under Article 12(2), domestic legal systems are obliged to introduce ‘a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims’. The EU thus requires Member States to make adequate financial resources available for the compensation of individuals who are victims of a violent intentional crime on their territory. The traditional resistance of some domestic legal systems to making statefunded compensation available to victims, as testified by the fact that not all EU

23 26

24 25 Recital (10). Recital (7). ETS 116. Case C-601/14 Commission v Italy EU:C:2016:759, para 49.

Victims of Crime in the AFSJ

Member States have signed the ECCVVC,27 was, at least initially, barely affected by the adoption of Directive 2004/80/EC. Indeed, the Commission had no other option but to start infringement procedures against several EU countries28 that failed to implement the directive. These procedures resulted in numerous convictions by the CJEU.29 Despite the sanctions, the interstate cooperation mechanism put in place by the EU does not seem to have been particularly successful in its practical application either. It should be remembered that, in its report on the implementation of Directive 2004/80/EC,30 the Commission found that very few victims had submitted an application pursuant to the procedure set out in the directive. Drawing on the findings of this report, the Budapest Roadmap called for a review of Directive 2004/80/EC. The Stockholm Programme also emphasised the need to examine the advisability of setting up a single comprehensive legal instrument for the protection of victims that would combine Directive 2004/80/EC and Framework Decision 2001/220/JHA. However, neither of these exhortations from the EU’s highest political institutions has yielded any appreciable results, so a long path remains before victims’ right to compensation is effectively guaranteed in the AFSJ.31

16.3 European Legal Instruments for the Approximation of Criminal Law Containing Special Provisions for Protecting the Victims of Certain Types of Offences At the beginning of the new millennium, the EU approved several Framework Decisions mainly aimed at defining the constituent elements and the content of applicable sanctions for particular offences. These framework decisions also contained special provisions regarding the victims of the crimes covered by these harmonising instruments.32 After the entry into force of the Treaty of Lisbon, a similar approach was adopted and developed through three legal instruments in

27 29

30 31

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28 COM (2001) 536 final, 10–11. COM (2009) 170 final, 4. See Commission v Italy (n 26); Case C-112/07 Commission v Italy EU:C:2007:742; Case C-26/07 Commission v Greece EU:C:2007:461. COM (2009) 170 final, 5–6. However, it should be recalled that in its very recent conclusions on victims’ rights ([2019] OJ C422/7), the Council of the EU stressed that ‘in order to improve victims’ access to compensation, appropriate measures should be considered. These measures could include strengthening cooperation at national and EU level. The possible revision of the Compensation Directive could also be considered depending on the outcome of the ongoing evaluation’. See Framework Decisions 2008/913/JHA; 2008/841/JHA; 2004/68/JHA; 2002/629/JHA; 2002/475/JHA.

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particular: Directives 2011/36/EU,33 2011/93/EU34 and 2017/541/EU,35 which provide for specific protection measures for the victims of certain offences. The stated aim of these directives was to uphold a series of rights enshrined in the CFR, including human dignity (Article 1), the prohibition of torture and inhuman or degrading treatment or punishment (Article 4), the right to liberty and security (Article 6) and the right to an effective remedy and to a fair trial (Article 47).36 Furthermore, Directives 2011/36/EU and 2011/93/EU sought to ensure that Article 24 CFR on the rights of the child was fully respected. It should be borne in mind that this form of minimal harmonisation was mainly inspired by treaties adopted under the auspices of the Council of Europe, specifically the Convention on Action Against Trafficking in Human Beings,37 the Convention on the Prevention of Terrorism38 and the Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse.39 In the same vein, it should not be forgotten that Strasbourg case law seems to have had an impact on these directives. It is well known that even though the ECHR does not explicitly mention victims of crime, the ECtHR was the first European institution to impose on contracting parties the obligation to criminalise40 certain forms of conduct prejudicial to the fundamental rights set forth in the Rome Convention, such as trafficking in human beings,41 intentional bodily injuries42 and sexual abuse.43 As regards minors, the Court has also held that any intentional conduct threatening a child’s physical or mental well-being is to be criminalised.44 Secondly, Strasbourg judges have acknowledged ‘the need to safeguard victims’ rights and their proper place in criminal proceedings’45 and have recognised that striking a balance between guarantees for victims and the rights of the accused46 is

33

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37 40

41 42 43 44 45 46

On preventing and combating trafficking in human beings and protecting its victims, replacing Council Framework Decision 2002/629/JHA, [2011] OJ L101/1. On combating the sexual abuse and sexual exploitation of children and child pornography, replacing Council Framework Decision 2004/68/JHA, [2011] OJ L 335/1. On combating terrorism, replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, [2017] OJ L 88/6. See Dir 2011/36/EU, recitals (1), (8), (10), (33); Dir 2011/93/EU, recitals (1), (2), (6), (47), (50); Dir 2017/541/EU, recitals (22), (35). 38 39 ETS 197. ETS 196. ETS 201. See M Engelhart, ‘Victims and the European Convention on Human Rights' in G Forti and others (eds), Victims and Corporations: Legal Challenges and Empirical Findings (Wolters Kluwer 2018) 118–23. Rantsev v Cyprus and Russia App no 25965/04 (ECtHR, 7 January 2010) para 284. Sandra Jankovic v Croatia App no 38478/05 (ECtHR, 5 March 2009) para 36. IC v Romania App no 36934/08 (ECtHR, 24 May 2016) para 52. KU v Finland App no 2872/02 (ECtHR, 2 December 2008) para 46. Perez v France App no 47287/99 (ECtHR, 12 February 2004) para 72. Doorson v Netherlands App no 20524/92 (ECtHR, 26 March 1996) para 70.

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legitimate when necessary to protect a victim’s personal life.47 The Court has therefore held that special procedural measures (like videorecorded interviews48 or anonymous witness testimony49) adopted to protect the most vulnerable victims from the violence of cross-examination are lawful, provided they are counterbalanced by mechanisms safeguarding the fairness of criminal proceedings,50 which, in any event, still needs to be guaranteed. Ever since the Pupino case, the CJEU has held that the EU provisions concerning victims of crime must be interpreted in such a way as to ensure that fundamental rights, in particular the right to a fair trial as set out in Article 6 of the Convention, are respected.51 It is precisely on this European case law that Directives 2011/36/EU and 2011/93/EU rely to affirm that the specific protective measures they provide for shall in no case be prejudicial to rights of defence.52 It should be pointed out that this special corpus of directives provides for safeguards that are additional to those contained in Directive 2012/29/EU, the general instrument adopted by the EU in this field. The rationale for protective measures specific to these categories of victims – again, regardless of their nationality – lies in the fact that the EU legislator considered these categories as particularly vulnerable53 because of the seriousness of the offence suffered.54 Member States are therefore required to give highest priority to measures that protect these victims from both secondary victimisation (that is, victimisation resulting not directly from the criminal act but rather through the response of institutions and individuals to the victim55) and repeat victimisation (that is, when the same victim suffers a series of criminal incidents during a specific period of time56). In line with Article 24 of the Charter, child victims par excellence deserve specific protection. Considered ‘particularly vulnerable’, they are the category that receives the highest degree of protection.57 Further, the EU legislator has demonstrated its awareness that recognising the right of victims to legal assistance is essential to ensuring effective access to justice. This is the idea at the heart of those provisions of Directives 2011/36/EU58 and 47 48

49 50 51

52 53

54 55

56 58

Y v Slovenia App no 41107/10 (ECtHR, 28 May 2015) para 103. Rosin v Estonia App no 26540/08 (ECtHR, 19 December 2013) para 62; Vronchenko v Estonia App no 59632/09 (ECtHR, 18 July 2013) para 65. Krasniki v Czech Republic App no 51277/99 (ECtHR, 28 February 2006) para 76. SN v Sweden App no 34209/96 (ECtHR, 2 July 2002) para 47. Pupino (n 9) paras 59–60; see also Case C-404/07 Katz (n 9) para 48; Case C-38/18 Gambino and Hyka EU:C:2019:628, para 40. See Dir 2011/36/EU, art 15(3); Dir 2011/93/EU, art 20(3); see also Dir 2017/541/EU, recital (35). Recital (12) of Directive 2011/36/EU and Article 19(4) of Directive 2011/93/EU mention children as being ‘particularly vulnerable’. See Dir 2012/29/EU, recital (57). Recommendation Rec(2006)8 of the Committee of Ministers of the Council of Europe to Member States on assistance to crime victims, para 1.3. 57 ibid para 1.2. See Dir 2011/36/EU, arts 13–16; Dir 2011/93/EU, arts 18–20. Arts 12(2), 15(2), recital (19).

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2011/93/EU59 that require victims to be given access without delay to both legal counselling and legal representation – free of charge, where necessary – even for the purpose of claiming compensation. Likewise, Directive 2017/541/EU requires Member States to ‘ensure that the severity and the circumstances of the criminal offence are duly reflected in the conditions and procedural rules under which victims of terrorism have access to legal aid in accordance with national law’.60 The third building block in this protection system for specific categories of victims consists of a bundle of ‘service rights’ that the EU sought to make available to victims. One example is medical treatment, including psychological consultations, which must be provided before, during and after criminal proceedings for an appropriate length of time.61 Finally, it is worth briefly mentioning the transposition of Directives 2011/36/ EU and 2011/93/EU. Here, too, European institutions’ assessments of the progress made by domestic legal systems have been far from positive: according to them, a wide gulf still needs to be bridged before the directives reach their full potential.62 Indeed, the issues with which the Commission was least satisfied included the ‘protection [of victims] before and during criminal proceedings’63 and the ‘assistance, support and protection measures for child victims’.64 An even more critical assessment was made by the EPRS, which, in relation to the directive on the sexual abuse of children, stated that ‘there is a long way to go before Member State criminal justice systems are able to fully guarantee the rights of child victims in practice’.65 In the same vein, in relation to the directive on trafficking in human beings, the EP felt compelled to remind the Member States of their obligation ‘to implement Articles 11 to 17 of the directive concerning protection and support of victims with a gender-sensitive approach’.66

16.4

Protection Through Legal Instruments Based on Mutual Recognition

The EU has also taken action to reduce the risk of repeat victimisation within the AFSJ through a series of legal instruments based on the principle of mutual recognition. Chief among these are Directive 2011/99/EU67 on the European protection 59 62

63 65

66

60 61 Art 20(2), recital (32). Art 24(6). Dir 2011/36/EU, art 11. Regarding Directive 2011/36/EU, see EP Resolution P8_TA(2016)0227 and Commission Report COM (2016) 722 final; see also COM (2018) 777 final. Regarding Directive 2011/93/EU, see EP Resolution P8_TA-PROV(2017)0501 and Commission Report COM (2016) 871 final. 64 COM (2016) 722 final, 17. COM (2016) 871 final, 20. EPRS, Combating Sexual Abuse of Children Directive 2011/93/EU: European Implementation Assessment (2017) 57. 67 See EP Resolution P8_TA(2016)0227, para 24. [2011] OJ L338/2.

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order and Regulation (EU) 606/2013.68 These two instruments are complementary69 in that the directive aims to ensure the mutual recognition of protection measures in criminal matters, while the regulation does likewise in civil matters. By protecting victims against the risk of secondary or repeat victimisation, these European acts provide more consistent protection of several fundamental rights enshrined in the CFR. Indeed, as pointed out by the European Union Agency for Fundamental Rights, ‘the victim’s right to non-recurring (repeat) victimisation and the duty of state authorities to assess the risk of repeat victimisation relate to several of the substantive provisions of the Charter’.70 The same idea underlies both instruments: for freedom of movement to be realistically safe within a common area of justice, the protection provided to a natural person in one Member State must be maintained and continued in any other Member State to which the person travels or moves.71 To realise this goal, both the directive and the regulation provide that, once a (criminal or civil) protection measure is ordered in a Member State (the ‘issuing State’72 or ‘Member State of origin’73), the protected person may also submit a request for protection in the Member State in which they decide to reside or stay (the ‘executing State’74 or ‘Member State addressed’75). This ensures that ‘the legitimate exercise by citizens of the Union of their right to move and reside freely within the territory of Member States, in accordance with Article 3(2) TEU and Article 21 TFEU, does not result in a loss of that protection’.76 The adoption of two separate cooperation mechanisms was necessary because of the heterogeneous legal traditions of the Member States, which have recourse to diverse legal instruments and different kinds of authorities (criminal, administrative, civil) to ensure protection against the dangers of repeat victimisation.77 Neither Directive 2011/99/EU nor Regulation (EU) 606/2013 obliges national legal systems to introduce new protection measures or modify those that already exist, given that the aim of both instruments is the mutual recognition of existing measures.78 More specifically, the prerequisite for the issuing of a European protection order or certificate under Article 3 of Regulation (EU) 606/2013 is the prior adoption by a national authority of a protection measure that consists of: (a) a prohibition from entering certain localities, places or defined areas; (b) a prohibition or regulation of contact, in any form and by any means, with the protected

68 69 71 72 75 76 77

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On mutual recognition of protection measures in civil matters [2013] OJ L181/4. 70 Regulation (EU) 606/2013, recital (9). FRA, Victims of Crime (n 14) 27–28. See Dir 2011/99/EU recital (6); Regulation (EU) 606/2013, recital (3). 73 74 Dir 2011/99/EU, art 2. Regulation (EU) 606/2013, art 3. Dir 2011/99/EU, art 2. Regulation (EU) 606/2013, art 3. See Regulation (EU) 606/2013, recital (3); Dir 2011/99/EU, recital (6). EPRS, European Protection Order Directive 2011/99/EU: European Implementation Assessment (2017) 30. See Regulation (EU) 606/2013, recital (12); Dir 2011/99/EU, recital (8).

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person; or c) a prohibition or regulation on coming within a prescribed distance of the protected person.79 Despite the similarities in the aims pursued and in some prerequisites for the adoption of protection measures, the cooperation mechanisms applied to ensure the circulation of protection measures in criminal matters differ greatly – from an operational perspective – from those used in civil matters. Unlike the provisions of Regulation (EU) 606/2013 and the relevant acts adopted under the third pillar, such as Framework Decisions 2009/829/JHA and 2008/947/JHA, the directive on the European protection order established a form of recognition in criminal matters that is merely mediate and indirect and thus appears to represent a step backwards in building mutual trust in the AFSJ. Directive 2011/99/EU created a mechanism whereby the protected person does not request the execution of the protection measure previously ordered in the issuing State. Rather, the act requiring mutual recognition is a so-called European protection order, on the basis of which the competent authority in the executing State adopts any measure –criminal, administrative or civil – available under its national law for similar situations (Article 9). The transposition of criminal decisions in this manner has the advantage of exempting the victim (or the potential victim or a protected person’s relative80) from having to initiate additional proceedings to obtain protection in the Member State to which they wish to travel or move. The recognition of civil judgments pursuant to Regulation (EU) 606/2013, on the other hand, is direct. Article 4 provides that ‘a protection measure ordered in a Member State shall be recognised in the other Member States without any special procedure being required and shall be enforceable without a declaration of enforceability being required’. As mentioned earlier, this cross-border circulation mechanism requires the protected person to furnish a certificate81 drawn up by the Member State of origin (of the measure) using a multilingual standard form. Significantly, there are further differences between the two EU acts: Directive 2011/99/EU82 provides a list of grounds for non-recognition of a European protection order that is considerably longer than the list of conditions for refusing recognition or enforcement mentioned in Regulation (EU) 606/2013.83 Legal scholars have cast doubt, however, on the usefulness of Directive 2011/99/ EU. In particular, they have criticised the risk of overlap between the protection provided by a European protection order and the protection provided under the above-mentioned Framework Decisions 2008/947/JHA and 2009/829/JHA.84

79 81 83 84

80 See Dir 2011/99/EU, art 5; Regulation (EU) 606/2013, art 3. Dir 2011/99/EU, recital (12). 82 Regulation (EU) 606/2013, art 5. Dir 2011/99/EU, art 10. Regulation (EU) 606/2013, art 13. See S Van der AA and J Ouwerkerk, ‘The European Protection Order: No Time to Waste or a Waste of Time?' (2011) 19 European Journal of Crime, Criminal Law and Criminal Justice 267.

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Regulation (EU) 606/2013 is similarly problematic.85 These concerns appear justified, at least as regards the European protection order. A 2017 study revealed that prior to its publication only seven European protection orders had been issued across the entire AFSJ,86 whereas thousands of protection measures have been sought in Member States in recent years. In practice, then, Directive 2011/99/EU has been a spectacular failure.

16.5 Directive 2012/29/EU Directive 2012/29/EU,87 which replaced Council Framework Decision 2001/220/ JHA, established minimum standards on the rights, support and protection of victims of crime. It is the European Magna Carta of victims’ rights and undoubtedly the most clearly articulated and advanced measure adopted by EU institutions in this field. A comparison between Framework Decision 2001/220/JHA and Directive 2012/29/EU immediately reveals the CFR’s rise in importance after the Treaty of Lisbon. Indeed, while the 2001 framework decision did not even mention the Charter, Recital (66) of Directive 2012/29/EU provides not only that ‘this Directive respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union', but also that the act as a whole ‘seeks to promote the right to dignity, life, physical and mental integrity, liberty and security, respect for private and family life, the right to property, the principle of non-discrimination, the principle of equality between women and men, the rights of the child, the elderly and persons with disabilities, and the right to a fair trial'. The first important feature to note about the directive is its list of general definitions, and especially the definition of victim. Here, the approach adopted by the EU legislator is much broader than in Framework Decision 2011/220/JHA.88 Article 2(1)(a) of the directive defines ‘victim’ as not only ‘a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence’, but also ‘family members of a person whose death was directly caused by a criminal offence’. That said, the directive 85

86 87

88

See C Moioli, ‘Le nuove misure “europee” di protezione delle vittime di reato in materia penale e civile' [2015] Eurojus 5. EPRS, European Protection Order Directive (n 77) 32. [2012] OJ L315/57; see also F Morillo and I Bellander Todino, ‘The Victims’ Rights Directive: Origins and Expectations' in M Bargis and H Belluta (eds), Vittime di Reato e Sistema Penale: La Ricerca di Nuovi Equilibri (Giappichelli, 2017); E Vergès, ‘Un Corpus Juris des Droits des Victimes: Le Droit Européen entre Synthèse et Innovations' [2013] Revue de Science Criminelle et de Droit Pénal Comparé 121; DG Justice guidance doc Ares(2013)3763804. Framework Decision 2011/220/JHA, art 1.

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excludes legal persons from the definition, in keeping with CJEU case law that had refused to extend the rights set out in Framework Decision 2001/220/JHA to legal persons. Ever since the Dell’Orto case, the CJEU has consistently adopted a literal reading of Article 1 of the framework decision, which concerns physical and mental injury caused by crime, by holding that the third pillar act covers ‘only … natural persons'.89 It should also be noted that the rights recognised in this directive do not apply only to European citizens. As stated in Recital (10), Member States must ensure that the rights conferred by the directive are not dependent on the victim’s residence status in their territory or on the victim’s citizenship or nationality. The EU has thus demonstrated its intent to create an AFSJ in which anyone who suffers a crime, including non-EU nationals, may rely on a set of fundamental safeguards. The purpose of Directive 2012/29/EU is twofold: first, to ensure that victims of crime receive appropriate information, support90 and protection,91 and second, to make sure that the victim’s perspective is heard in criminal proceedings.92 As regards the second objective, the directive confirmed the choice made in Framework Decision 2001/220/JHA93 not to compel national governments to harmonise their legislation relating to the victim’s role in criminal procedures. As can be inferred from Recital (20) of Directive 2012/29/EU, Member States are free to determine whether victims should be accorded legal status as parties to proceedings, allowed to participate in proceedings or permitted to give evidence as witnesses. It is this deliberate self-restraint that explains the directive’s numerous safeguard clauses protective of national laws.94 In various places the directive makes use of expressions such as ‘if such a right exists in national law’, ‘in accordance with the role of the victim in the relevant criminal justice system’ or ‘in accordance with the procedural rules determined by national law’. Article 10(2), for instance, defers to national law for the conditions under which victims may be heard. Article 13 on the right to legal aid provides for a form of protection that is even more limited; as such, it is certainly one of the most disappointing provisions in the directive. Access to legal aid is deemed a fundamental right only for victims who have ‘the status of parties to criminal proceedings’, and the relevant procedural rules are determined by national law. Directive 2012/29/EU thus provides for a distinctly lower degree of protection than not only Directives 2013/48/EU95

89

90 93 95

Dell’Orto (n 9) paras 53–56; see also Case C-603/19 TG and UF EU:C:2020:774 para 46 Giovanardi (n 9) para 46; Eredics and Vassné Sápi (n 9) para 25. 91 92 Ch II (arts 3–9). Ch IV (arts 18–24). Ch III (arts 10–17). 94 See Framework Decision 2001/220/JHA, recital (9). Allegrezza (n 12) 5–6. [2013] OJ L294/1.

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and 2016/1919/EU96 concerning accused persons but also Directives 2011/36/EU and 2011/93/EU, discussed earlier. This represents a missed opportunity, for the European legislature could have shown a stronger commitment to legal aid, a right expressly set forth in Article 47(3) of the Charter. Articles 11 and 14 of Directive 2012/29/EU occupy an intermediate position. Although not limited to victims who are parties to criminal proceedings, these provisions make the right to a review of a decision not to prosecute and the right to reimbursement of expenses dependent on the role of the victim in the relevant criminal justice system. As a result, the conditions and procedural rules under which victims may exercise these rights in practice are wholly devolved to national law. The same goes for Article 15 on the right to the return of property. Article 16 on the right to obtain a decision on compensation by the offender within a reasonable time in the course of criminal proceedings seems to provide a stronger safeguard. However, although prescriptive,97 it allows Member States to make that decision in other legal proceedings, which weakens the safeguard. Clearly, the considerable leeway given to national legislators jeopardises the minimum harmonisation that the EU legislation seeks to achieve. Indeed, the AFSJ’s system of protection for victims, despite its merits and notwithstanding the implementation of Directive 2012/29/EU, remains highly dependent on geography. This is not to say, however, that the half-hearted nature of the decisions referring to the rights of victims to participate in criminal proceedings means that Directive 2012/29/EU fails to deliver advanced forms of protection for victims. Such protection is in fact afforded primarily through the right to interpretation and translation (Articles 7, 5(2) and 5(3)), the right to understand and be understood (Article 3) and the right to receive information (Articles 4 and 6), the relevance of which is reiterated throughout the text. By placing the right to interpretation and translation and the right to receive information at the forefront, the EU legislator adopted an approach to victims that resembles the approach it took in Directives 2010/64/EU98 and 2012/13/EU99 on strengthening the rights of accused persons in the AFSJ. The conflation of EU sources of law addressing accused persons and victims is also reflected in the fact that Article 7 of Directive 2012/29/EU draws on certain provisions of Directive 2010/64/EU. Nevertheless, there are considerable differences between the right to interpretation and translation granted to the accused and that granted to victims, most notably the lack of any reference in Directive 2012/29/EU to the essential requisite of the quality of the interpretation and translation, which was a cornerstone of Directive 2010/64/EU. The right to interpretation and translation is in any case only one building block in the charter of rights of cross-border victims. Article 17 on the rights of victims resident in

96

[2016] OJ L297/1.

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Allegrezza (n 12) 16.

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[2010] OJ L280/1.

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[2012] OJ L142/1.

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another Member State, which deals exclusively with this category of victims, contains (most of) the provisions of Article 11 of Framework Decision 2001/220/JHA. The purpose of protecting victims and their family members from secondary and repeat victimisation100 – within and outside the context of criminal proceedings – is explicitly pursued by the EU legislator in Directive 2012/29/EU, in particular in its chapter 4, which contains some of the directive’s most progressive provisions. After all, for the EU, the importance of the right of every and all victims to be ‘protected’ from intimidation and retaliation (Article 18) and during questioning and when testifying (Article 20) and from interference by the media (Article 21) clearly comes to the fore when considering that, in these cases, references to national legislation are minimal. In these fields, the degree of protection is much higher than that given to victims’ rights to participate actively in criminal proceedings, and this is understandable because the former type of protection often ignores the role of the victim in the isolated national criminal justice systems. As held by the CJEU in the Gueye and Salmerón Sánchez case – albeit in relation to Framework Decision 2001/220/JHA – EU protection measures are here ‘intended to ensure that the ability of victims adequately to take part in the criminal proceedings is not jeopardised by the possibility that their safety and privacy is placed at risk’.101 The chapter 4 provisions of Directive 2012/29/EU did not come out of a void. They represent the culmination of a long process that started with Framework Decision 2001/220/JHA and experienced a fundamental breakthrough with Directives 2011/36/EU and 2011/93/EU. Moreover, Directive 2012/29/EU incorporated Strasbourg and CJEU case law, explicitly affirming the need to safeguard the rights of the defence when ordering protection measures in favour of victims.102 This sensitive topic was examined by the CJEU in the Gambino and Hyka case, where the Court called upon national judges to verify that the protection measures did not jeopardise the right to a fair trial or the defendant’s rights of defence set forth, respectively, in Articles 47 and 48 of the Charter.103 But the greatest advance in chapter 4 (and probably in the entire directive) was the inclusion of provisions on individually assessing the protection needs of each victim (Article 22), which clearly represent an improvement on the provisions of Framework Decision 2001/220/JHA.104 Rather than relying on abstract criteria to establish a priori whether or not some victims need special protection measures,105 Directive 2012/29/EU requires individual assessments to be carried out to establish whether (and in what way) the particular victim needs customised protection. To

100 101 103

104

See recitals (9), (17), (46), (52), (53), (54), (55), (57), (58), (63) and arts 9, 12, 18, 22, 26. 102 Gueye and Salmerón Sánchez (n 9) para 64. See recital (58) and arts 18, 20, 23. Gambino and Hyka (n 51) para 55; see also Case C-38/18 Gambino and Hyka EU:C:2019:208, Opinion of AG Bot, para 73. 105 Allegrezza (n 12) 18–19. See, however, art 22(3)–(4), recital (57).

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this end, it points out that consideration shall be given to the personal characteristics of the victim, the type or nature of the crime and the circumstances of the crime.106 The various special protection measures available to victims whose specific protection needs have been identified through individual assessment are listed in Articles 23 and 24. The directive lists additional measures for minors, whom it regards as ‘super-victims'107 entitled to greater safeguards than other victims.108 A further aspect worth noting is that Directive 2012/29/EU places considerable emphasis on the so-called service rights, which form an integral part of the protection that the Member States are required to provide, with no margin of discretion, for all categories of victims (Articles 8 and 9). Lastly, some consideration needs to be given to the implementation of the directive. Of the various studies already done on the topic, the report by the EPRS is of particular note.109 The picture that emerges from it is dismal: again, Member States seem to have transposed the directive without sufficient precision or uniformity. This becomes clear from the statistics on the degree of Member States’ compliance when transposing the directive. The report reveals significant variations, which it groups into three categories: a) ‘virtuous’ Member States that have transposed 75–100 per cent of the directive; b) ‘manifestly defaulting’ Member States that have transposed only 25–30 percent; and c) ‘intermediate’ Member States that have transposed 50–75 percent.110 The considerable difficulties met in implementing the directive are reflected in the fact that the Commission has initiated many infringement procedures against Member States for not having completely transposed Directive 2012/29/EU.111 It is particularly discouraging that significant differences persist between national criminal legal systems on key aspects of the protection of victims. As the EP itself admitted, one of the main problems in this regard is that several Member States continue to define the notion of victim in a manner that fails to fully transpose Article 2.112 In short, apart from its declarations of principle, Directive 2012/29/ EU is yet another missed opportunity.113

106 107

108 109 111

112 113

Art 22(2); see also recitals (55), (56), (57). See M Gialuz and S Allegrezza, ‘Víctima y “Supervivencia” en la Justicia Penal Europea' in T Armenta Deu and S Oromí Vall-Llovera (eds), La Víctima Menor de Edad: Un Estudio Comparado Europa/América (Colex 2010) 511. Gambino and Hyka Opinion of AG Bot (n 103) para 68. 110 EPRS, Victims’ Rights Directive (n 5) 24–107. ibid 98–99. See EP Report on the implementation of Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, A8 0168/2018, 8; see also Commission Report COM (2020) 188 final, 2. EP Report (n 111) 4. See also COM (2020) final, 3.1. See Commission Statement/19/1329 and COM (2020) 188 final, 5.

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16.6

Future Perspectives

Notwithstanding the adoption of a range of directives, the protection of victims of crime remains a political priority for the EU.114 This can be inferred, for instance, from the Council conclusions on victims’ rights issued in December 2019, which invited the European Commission to draw up a new EU strategy on victims’ rights for the next years.115 The reason for making this a priority is clear: ‘Every year, an estimated 15% of Europeans or 75 million people in the European Union fall victim to crime.’116 These figures are likely to increase in proportion to the increasing number of people who, taking advantage of the fundamental freedoms guaranteed by the EU, move within the AFSJ for study or work. In light of the above figures, the establishment of the European Network on Victims’ Rights,117 ‘created to stimulate and aid the implementation of existing EU legislation on victims’ rights and to suggest, where appropriate, any possible areas for improvement of the EU acquis in this field’, must be welcomed.118 As was to be expected, the network identified various critical aspects of the acts in force that needed reconsideration. At the Amsterdam meeting, ‘the following topics were classified as the most problematic while implementing the Victims’ Rights Directive: provision of information, individual assessment and cross border cooperation’.119 More details can be found in the above-mentioned EP report on the implementation of Directive 2012/29/EU120 and in the recent report by Joëlle Milquet, Special Adviser to President Juncker on compensation for victims of crime.121 As the EP’s findings suggest, ad hoc provisions in the field of ‘legal assistance’122 for cross-border victims could prove useful. To this end, it is hoped that victims may in the future benefit from two legal counsel – one in the Member State of residence and one in the Member State where the crime was committed or to which the victim wishes to move – along the same lines as the provisions regulating the rights of the accused in Directives 2013/48/EU and 2016/1919/EU. The 114 115

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118 120 121

122

See Commission Press Release IP/19/1609. [2019] OJ C422/5. The European Commission adopted on 24 June 2020 its first-ever EU strategy on victims' rights (2020-2025). See COM (2020) 258 final. Commission, ‘Protecting Victims’ Rights’, https://ec.europa.eu/info/strategy/justice-andfundamental-rights/criminal-justice/victims-rights_en, accessed 21 June 2020. See I Gážiová and J Kralik, ‘The New European Network on Victims’ Rights' (2016) 16 International and Comparative Law Review 83. 119 Council of the EU, doc 9997/16, 3. Council of the EU, doc 15333/16, 2. EP Report (n 111). J Milquet, ‘Strengthening Victims’ Rights: From Compensation to Reparation; For a New EU Victims’ Rights Strategy 2020–2025' (2019). EP Report (n 111) 13, para 10.

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recognition of a right to a ‘dual defence’ – free of charge in cases of indigence – would overcome most of the practical difficulties cross-border victims face when they try to access the criminal justice system, and would thus benefit both freedom of movement and the principle of non-discrimination. From a more general perspective, the legal representation of any victim (whether cross-border or not) should be regulated by much more advanced provisions than those in force. Such regulations could be created – with the necessary variations – on the basis of the minimum standards applicable to accused persons. It should not be forgotten that the right of access to a lawyer, paid by the Member State where appropriate, as well as the rights to information and to interpretation and translation, are ‘super-rights’ that functionally precede not only the exercise of the victim’s right to ‘participate in the criminal justice system’, which serves as an important symbolic form of compensation for the crime,123 but also the right to ‘monetary compensation’ from both the offender and the Member State. These essential components of the European Victims’ Rights Directive will remain ineffective unless victims of crime in the AFSJ are assured of the right to legal aid to exercise their rights, even when they are not a party to proceedings, in accordance with the legal traditions of a given national system of justice. That said, the EU’s main goal must be to convert its provisions from mere words on paper into reality.124 To this end, attention must be drawn to the EP’s reports and resolutions on the implementation of the corpus of directives concerning victims of crime, the purpose of which was to induce governments to comply with their European obligations. The Commission – which has financed various projects in this field and successfully exercised its powers of political initiative – has displayed timidity when reporting on Member States’ progress, often failing to submit its reports within the deadline set.125 National legal practitioners have also apparently adopted a passive attitude towards the new EU legal resources for victims of crime, in that they have seldom requested a preliminary ruling from the CJEU, which is often fundamental to direct application of the self-executing provisions of directives. To date, only three requests have been submitted for a preliminary ruling in relation to Directive 2012/29/EU.126 This represents a step backwards compared to Framework Decision 2001/220/JHA, which, as already mentioned, gave rise to several preliminary rulings.

123 124

125 126

See Gialuz and Allegrezza (n 107) 518. See T Wahl, ‘Council Conclusions on Victims’ Rights’ (eucrim, 22 February 2020), stating that ‘Member States are called on, inter alia, to ensure the complete and correct transposition and effective practical implementation of the existing EU legislation on victims’ rights'. As happened with Directives 2012/29/EU and 2011/99/EU. Case C-484/16 Semeraro EU:C:2016:952; Gambino and Hyka (n 51); TG and UF (n 89).

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To conclude, without joint efforts by national courts and EU institutions, the Member States’ resistance will be difficult to overcome, thereby undermining the creation of an AFSJ where the rights of victims are concrete and effective. The right of victims of crime to have access to justice should exist not only in the text of Charter and in EU secondary law, but also in practice.127 Until that happens, the other components of the European justice system must live with the knowledge that they are giving rise to a ‘double injustice for the victim[s]’,128 who not only suffer the negative impact of a crime but are also deprived of the full exercise of the rights that the EU has struggled to grant them.

127 128

See the four-part report by FRA, Justice for Victims of Violent Crime (2019). Commission, Statement/18/1061.

17

The Principle of Legality in the Area of Freedom, Security and Justice CHRISTINA PERISTERIDOU

17.1 Introduction The present chapter focuses on the most salient features of the principle of legality as a fundamental right of European Union (EU) law. The principle is enunciated in Article 49(1)–(2) of the Charter of Fundamental Rights of the European Union (Charter or CFR) and stands as a cornerstone of Enlightenment ideals in national legal systems. Known as nullum crimen nulla poena sine lege, it stipulates that there can be no crime or punishment without a law. Its normative applications are determined by the attributes of the law, from which flow the many prohibitions that constitute the principle’s defining characteristics. First, the principle of legality prohibits the retroactivity of criminal legislation and punishment: criminal law must pre-exist the commission of the offence (lex praevia). Second, criminal legislation must be clear and precise, so that individuals can anticipate criminal prosecution (lex certa). Third, courts may not interpret criminal liability extensively (lex stricta). Finally, criminal liability and punishment are to be based on written sources (not customary law) and, more specifically, parliamentary statutes (lex scripta). Hence, the principle’s impact on secondary law is related to the formal characteristics of European norms – that is, their genesis, interpretation, application and implementation. In EU law, all these aspects pre-existed the Charter. The bedrock principles of criminal law entered EU law decades ago.1 The four freedoms and the accompanying secondary legislation clashed with national criminal law, forcing the EU to respect criminal law concepts. Over the years, the principle developed in several directions, giving rise to various transformative effects and sometimes coming to a dead-end. My aim is to present the principle’s normative influence in the Area of Freedom, Security and Justice (AFSJ), with a particular focus on criminal law and the fundamental challenges it poses. I will show that the principle’s impact on the AFSJ has been uneven. Manifesting chiefly in the harmonisation instruments foreseen in Article 83 of the Treaty on the Functioning of the European Union

1

A Klip, European Criminal Law: An Integrative Approach (Intersentia 2016) 72–120.

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(TFEU), its influence on mutual recognition remains very limited. Although such limitation appears justified, it may lead to several problems. As a preliminary remark, I should highlight two considerations that currently inform the principle. First, the principle is in a state of flux in national law. There is a big discrepancy between theory and practice, especially in Continental systems (eg France, Germany). For example, theory dictates that courts should never employ analogical reasoning, but they do in practice. Over the years, contradictions of this kind have fuelled discussions on whether the doctrine of the principle of legality is anachronistic.2 Second, balancing crime control (effective prosecution) and due process (legal protection) is at the heart of contemporary legal systems. The principle of legality reflects that balance and, consequently, lies at the mercy of prevailing political objectives such as counterterrorism, efficiency or liberalism. Terrorist attacks, rapidly developing societies and the digital revolution steer the zeitgeist towards more crime-control and risk-prevention policies.3 Hence, the principle of legality operates against a challenging background. Its endorsement as a central part of the European legal system is necessarily dependent on these perplexing trends.

17.2 The Origins of the Legality Principle in the EU In EU law, the principle now has the status of a fundamental right (Article 49(1)– (2) CFR), although it has been recognised as a general principle of EU law since 1984.4 The so-called general principles of EU law are specific documented principles originating from the common constitutional traditions of the Member States and other international instruments, whose principal sources are the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR).

17.2.1

National Constitutional Traditions

This dual pedigree of general principles was methodologically clever. It allowed the Court of Justice of the European Union (CJEU) to align the EU legal order with national legal traditions and internationally influential instruments. The added value of the link to national systems is twofold. First, for most criminal systems

2

3

4

DH de Jong, ‘Naar een Common Law: Conceptie van Legaliteit?’ (1999) 29 Delikt en Delinkwent 687. CPM Cleiren, Evolueren naar meer Horizontale en Multi-Dimensionale Verhoudingen in het Strafrecht (Kluwer 2010) 6. Case C-63/83 Regina v Kirk EU:C:1984:255.

The Principle of Legality in the AFSJ

in Europe, the principle of legality has tremendous importance and it is often codified in national constitutions.5 Taking inspiration from national legal traditions was a way of ensuring constitutional peace between EU and national legal orders in the field of criminal law. Second, the CJEU typically refers to national constitutional traditions. Although the legality principle is an autonomous concept in EU law, it draws on national law. In my view, the influence of national constitutional traditions on the EU legality principle is less pronounced than it is on other general principles. The CJEU rarely conducts in-depth comparative research and, more importantly, national legal systems do not vary significantly, as I will explain.

17.2.2 ECHR The ECHR – specifically, Article 7 – gives the EU legality principle its second pedigree. Although any international instrument would qualify, the CJEU mainly refers to the ECHR.6 The ECHR has profoundly influenced the interpretation of this principle in EU and national law. ECtHR case law is marked by two features that have since come to characterise the EU legality principle, too. First, the ECtHR took a middle ground in areas where national traditions were in disagreement, such as the power of courts to interpret criminal liability. Second, the principle of legality functions as a human right. It displays characteristics common to rights, such as their relativism, which requires a weighing of conflicting rights.7 The ECtHR also championed a novel understanding of the legality principle – the so-called rights conception – which differs from the way the principle is understood in national law.8 It is less concerned with the formalistic requirements of criminal liability (eg statutory or judicially defined liability) and more attentive to substantial justice. The most notable example is marital rape: although forced intercourse within marriage was not formally defined as a criminal act in English law, the ECtHR found that it was actionable by virtue of substantive justice.9 Moreover, the ECHR has given greater prominence to foreseeability. Criminal liability should be foreseeable (regardless of its legal basis, ie statute or case law). Fundamentally, the principle became relative (acquired the so-called relational dimension) – that is, when assessing the foreseeability of criminalisation, legality is measured against other rights at stake. National courts internalised the ECtHR

5 6 7

8 9

eg German Basic Law (Grundgesetz für die Bundesrepublik Deutschland) s 103(2). For some notable exceptions, see C-387/02 Berlusconi and Others EU:C:2005:270. E Claes, ‘Criminal Justice, Legality and Human Dignity’ in E Claes, R Foqué and T Peters (eds), Punishment, Restorative Justice and the Morality of Law (Intersentia 2005) 41–44. K Rozemond, ‘Legaliteit in het Materiële Strafrecht’ (1999) 4 Rechtsgeleerd Magazijn Themis 117. CR v United Kingdom, App no 20190/92 (ECtHR, 22 November 1995) para 42.

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approach, leading to criticism from some scholars.10 If the focus shifts from formalistic requirements to foreseeability, the responsibility seemingly passes down to individuals. It swings from ‘legislation must be foreseeable’ to ‘individuals must foresee criminalisation’.11 The transition from a general principle of EU law to a fundamental right of the Charter occurred uneventfully. One difference between Article 49 CFR and Article 7 ECHR is that the former codifies lex mitior in paragraph 1, which affirms the retroactive application of a more lenient penalty. This aspect is not codified in the text of Article 7 ECHR.

17.3

Normative Standards

What does the legality principle entail in EU law? The principle offers guidance for both European and national authorities (legislators, courts and governments) on the design and application of criminal liability and punishment. Essentially, the principle applies to substantive criminal law – that is, matters covered by Article 83 TFEU. In the sub-sections that follow, I will explain the legal requirements that flow from this principle in EU law and highlight a number of problematic features.

17.3.1

Sources of Criminal Law

The first requirement concerns the source of criminal liability and penalties. This is expressed in what the CJEU calls ‘the principle that penalties must have a proper legal basis’.12 What type of law can form the basis for criminal liability and penalties? The principle answers this question by identifying three layers, each providing a different level of protection. First, criminal liability can be established only when written laws are violated (lex scripta). In national systems, criminal liability or punishment cannot therefore be based on customary law. In international law, the effect is different. What came to be known as the Nuremberg exception allows criminal liability to be established on the basis of customary law.13 However, the exception applies only to war crimes committed during World War II, so that that those atrocities did not go unpunished.14 Interestingly, the Nuremberg exception became part of the

10

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12 14

B Jähnke, ‘Zur Erosion des Verfassungssatzes “Keine Strafe ohne Gesetz”’ (2010) 7 Zeitschrift für Internationale Strafrechtsdogmatik 463. B Schünemann, Nulla Poena Sine Lege? Rechtstheoretische und Verfassungsrechtliche Implikationen der Rechtsgewinnung im Strafrecht (De Gruyter 1978) 8. 13 Case C-457/02 Antonio Niselli EU:C:2004:707. ECHR art 7(2). Maktouf and Damjanovic´ v Bosnia and Herzegovina App no 2312/08 (ECtHR, 18 July 2013) para 72.

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Charter in Article 49(2), where it has the same scope as in the ECHR.15 In my view, the significance of the Nuremberg exception in EU law remains merely symbolic and historical, given that the EU has no competence to harmonise war crimes. Second, who can create criminal liability? Should it be the parliament, the courts or the government? The legality principle presupposes legitimate decision-making by a democratically elected body (lex parliamentaria). According to Article 83 TFEU, criminal liability can be defined only by directives issued by the European legislature. Yet, does the EU legislature have sole authority to do so? Article 49 CFR takes a less strict stance, admitting ‘the gradual clarification of the rules of criminal liability’ through judicial interpretation.16 Foreseeability is of the essence – it is crucial that ‘the individual is in a position, on the basis of the wording of the relevant provision and if necessary with the help of the interpretation made by the courts, to know which acts or omissions will make him criminally liable’.17 Consequently, in the field of competition law, the Commission may define sanctions for violations of Articles 101 and 102 TFEU without violating the principle of legality.18 Trias politica is also understood more loosely in EU law.19 It departs from the Continental notion of courts as mechanical appliers of statutes, allowing the legality principle to adapt to the role of institutions in a legal system. A more rigid approach would not square with the historically powerful role of the CJEU.20 Such power is comparable to the position of the English courts, which have long been considered guarantors of the rule of law – in contrast to Continental systems, where they were long feared as potential abusers. Nowadays, the two legal traditions are converging. English courts are no longer allowed to create or expand criminal liability, while the need for flexibility and adaptation in times of rapid technological advancement has led Continental systems to more accepting of courts with increased power.21 Third, the EU principle of legality applies to national legislation implementing EU legislation. Over the years, the CJEU has insisted that national implementation – where required – be in the form of statutes.22 More interestingly, the prosecution of criminal offences requires not only a statutory but also a national basis. This

15

16 17 18 19 20 21

22

EU Network of Independent Experts on Fundamental Rights,’ Commentary of the Charter of Fundamental Rights of the European Union’ (2006) 383. Case C-189/02 P Dansk Rørindustri A/S and Others EU:C:2005:408, paras 215–16. Case C-42/17 MAS and MB EU:C:2017:936, para 56 (Taricco II). Case T-279/02 Degussa v Commission EU:T:2006:103. J-P Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CMLRev 383. KJ Alter, Establishing the Supremacy of European Law (OUP 2001) 229. C Peristeridou, The Principle of Legality in European Criminal Law, (Intersentia 2015) 67–69, 101–03. Case C-233/00, Commission v French Republic, EU:C:2003:371, para 44.

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means that criminal liability and penalties cannot be based solely on directives and that regulations cannot prescribe criminal liability on their own.23 I call this aspect, which is peculiar to EU law, lex nationalis. While individuals may rely on directives (under certain conditions), the same cannot be said of national authorities, at least not when imposing obligations on individuals. Hence, the principle of legality limits the direct effect doctrine.24

17.3.2

Precision of Criminal Law

The principle of legality requires that criminal liability be precise, so that individuals can foresee criminal liability and punishment (lex certa). In addition to clarity, criminal law must also be accessible – that is, published in the EU language of the defendant.25 Yet, how precise should criminal liability and penalty be? It is not possible to set a threshold for precision. The legislature strikes a balance between excessive rigidity and abstractness. Foreseeability cannot be absolute, as some interpretation is required in determining the limits of criminalisation.26 Given that directives must be implemented, the responsibility for creating precise legislation lies with both the EU and national legislatures.27 Often, the scope of criminal liability in directives is unclear, resulting in a confusing mandate as to what exactly national authorities are to criminalise. A recent example is Article 10 of Directive (EU) 2017/541. This counterterrorism directive criminalises ‘any act of organisation or facilitation that assists any person in travelling for the purpose of terrorism, as referred to in Article 9(1) and point (a) of Article 9(2), knowing that the assistance thus rendered is for that purpose, is punishable as a criminal offence when committed intentionally.’28 It is unclear what constitutes an ‘act of … facilitation’. The vagueness of this provision could lead to overcriminalisation, to the point of including the families of defendants. Another example is the way in which directives codify sanctions. Typically, national legislatures enjoy considerable flexibility. Directives prescribe only a minimum for the upper limit of imprisonment. In many directives this prescription has been formulated most confusingly as ‘a maximum of, at least, between one and three years’. It translates into an upper limit of at least one year, while the 23 24 25

26 27

28

Case C-224/09 Martha Nussbaumer EU:C:2010:594. Case C-80/86 Kolpinghuis Nijmegen EU:C:1987:43. Case C-345/06 Gottfried Heinrich EU:C:2009:140, para 45; Case C-161/06 Skoma-Lux EU:C:2007:773, para 39. Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979), para 49. C Peristeridou, ‘The Principle of “Lex Certa” in National Law and European Perspectives’ in A Klip (ed), Substantive Criminal Law of the European Union (Maklu 2011) 90–94. Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA [2017] OJ L88/6.

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reference to a three-year limit ultimately means nothing.29 Thankfully, the formulation has been simplified in recent legislation.30 National statutes must comply with this aspect of Article 49 CFR, which also functions as a criterion in monitoring implementation.31 There are no specific requirements as to how implementation is to be realised. National authorities are free to copy and paste the description of criminal liability into national law, translate (and rephrase) it, make reference to it (eg violations of Article X of Directive Y shall be criminalised), or indeed forgo implementation if existing legislation already covers the offence. Naturally, reproducing the original text of the directive (simply copying and pasting the text or citing the directive in question) is liable to endanger foreseeability.

17.3.3 Non-Retroactivity of Criminal Law Lex praevia precludes the retroactive application or extension of criminal liability and penalties. In its early case law (especially in relation to competition law), the CJEU identified lex praevia with the principle of legitimate expectations: state actions should not frustrate individuals’ legitimate expectations.32 Firmly grounded in EU and national law, this aspect of the legality principle is relatively unproblematic. Directives must not prescribe criminal liability or penalties retroactively (ie by setting an enactment or implementation date in the past).33 Directed at national authorities, the principle precludes retroactivity regardless of the nature of the European instrument (criminal or non-criminal law).34 Even if regulations and decisions contain retroactive provisions, they have no retroactive effect in national criminal law.35 The various prohibitions flowing from the legality principle are triggered when the perpetrator’s legal position worsens. If that position remains unchanged or improves, there is no breach of the principle of legality. The retroactive application of a more lenient offence or penalty is permitted under another principle – namely, lex mitior. It is codified in Article 49 CFR and has led to serious collisions with EU primacy.36 It regulates the application of legislation that is amended

29 31

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30 Klip (n 1) 356–57. Dir (EU) 2017/541 (n 28). Commission, ‘Report from the Commission based on Article 14 of the Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment’ COM (2004) 346 final, s 1.2.2. T Tridimas, General Principles of EU Law (OUP 2006) 251–52. Case C-331/88 FEDESA EU:C:1990:391, para 44. Case C-550/09 E and F EU:C:2010:382, paras 60–62. Regina v Kirk (n 4). JGH Altena-Davidsen, Het Legaliteitsbeginsel en de Doorwerking van Europees Recht in het Nederlandse Materiële Strafrecht, (Kluwer 2016) 316–66.

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after its initial adoption. The key consideration is leniency, understood as less severe punishment or narrower liability. Yet, the application of legislation is also affected by the principle that courts must not give effect to statutes contrary to EU law.37 The combination of these two principles raises the question, of what to do when newer, more lenient national legislation violates EU law, as illustrated in Berlusconi. This case became a landmark signalling the start of a conflict of principles that has led to some troublesome judgments which continue to plague EU law. The facts were simple enough: the Italian legislature had already successfully implemented EU law, but subsequently amended its legislation, causing it to no longer be in conformity with EU law. This amendment would normally have to be annulled, yet it was more lenient on the defendant.38 An initial question was whether lex mitior should prevail over EU primacy. The pre-Berlusconi approach limited lex mitior to cases where EU primacy was not affected.39 In Berlusconi, the CJEU allowed lex mitior to trump EU primacy. The wording, however, was carefully chosen to avoid directly addressing the dilemma. As a consequence, national authorities could escape – at least in principle – their obligation to enforce EU law by (ab)using lex mitior. A second question was whether national legislation implementing directives could be amended and applied, even if it is at odds with EU law, provided it is more lenient for the defendant (lex mitior). The somewhat ambiguous legal reasoning in Berlusconi did little to clarify this issue, which had to wait until Scialdone for a clear answer. In that case, Advocate General Bobek called for lex mitior to take precedence, arguing that limiting EU primacy was justified in such a situation. This position is supported by the strength of Charter rights and the need to ensure legal certainty, for individuals cannot be expected to constantly assess whether national legislation regulating their conduct is compatible with EU law.40 The scope of lex mitior is far from clear and the CJEU has struggled to demarcate its reach in subsequent cases. In Paoletti, for example, the Court did not take a clear stance on whether the principle applies to amendments of non-criminal law instruments that also define criminal liability.41 The Court has limited the application of lex mitior to cases where the legislator seeks to decriminalise an act, not to factual changes. Paoletti involved a factual change: the acquisition of EU citizenship by Romania’s citizens when the country joined the EU. Because this was a factual development, it did not retroactively alter the punishable character of acts

37 39 40 41

38 Case C-106/77 Simmenthal II EU:C:1978:49. Berlusconi (n 6). Case C-457/02 Niselli EU:C:2004:365, Opinion of AG Kokott, para 71. Case C-574/15 Scialdone EU:C:2017:553, Opinion of AG Bobek, para 166. C Peristeridou, ‘EHRC 2017, C-218/15 Criminal proceedings against Gianpaolo Paoletti et al.’ (2017) 23 European Human Rights Cases 77.

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such as illegal trafficking of workers that occurred before Romania’s accession to the EU. Similar demarcation of lex mitior (making it applicable only to genuine decriminalisation and not to factual amendments) exists in some national systems (eg Dutch law).42 More fundamentally, the question of whether lex mitior deserves so much attention remains open. Much of the controversy arises from the assumption that lex mitior is an aspect of the legality principle (and should therefore enjoy a similar level of protection) because it is codified in Article 49 – an assumption that does not necessarily hold. Lex mitior and the legality principle could actually be two entirely different principles: one protecting individuals from the arbitrary nature of unforeseeable criminalisation; the other benefitting individuals regardless of foreseeability. In fact, the foundations of lex mitior are often reported in scholarship as being distinct from those of the legality principle (new and better law, equality, leniency, proportionality).43 Hence, in many national systems, the principle is not applied with the same force as the legality principle (again, see Dutch law). The roots of lex mitior in EU law have recently been debated. As Advocate General Bobek pointed out, foreseeability might still be relevant for lex mitior if the newer legislation creates legitimate expectations, on the basis of which defendants make procedural choices during their defence.44

17.3.4 Interpretation of Criminal Law The interpretation of a statute should not expand criminal liability or punishment (lex stricta). Here, the CJEU has fully espoused the ECtHR’s stance: gradual judicial clarification of statutes is not proscribed, so long as it is foreseeable. Foreseeability requires that individuals – if necessary, thanks to legal advice – be able to anticipate the criminal liability and penalty established by the statute. The field of law and status of those it addresses are relevant; for example, professionals are expected to be aware of the legislative regulations of their field.45 In technical fields governed by a plethora of regulations, annexes and frequent amendments of both national and EU origin, maintaining such awareness can be especially demanding. Lex stricta prohibits interpretation by analogy.46 This is a matter on which doctrine and practice diverge. Not only is there a sharp contrast between civil and common law traditions, but analogy is not easily defined or distinguished from other forms of interpretation.47 This explains why, although the ECtHR and the

42 43 45 47

G Knigge, Verandering van Wetgeving (Gouda Quint 1984) 455–63. 44 Altena-Davidsen (n 36) 310. Scialdone, Opinion AG Bobek (n 40) paras 163–64. 46 Dansk Rørindustri (n 16) para 219. Schünemann (n 11) 8. Peristeridou, The Principle of Legality (n 21) 104–15.

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CJEU both recognise this prohibition as part of the legality principle, they rarely use it as a tool to define the appropriate limits of interpretation.48 It appears to be more of a symbolic standard. In EU law, teleological interpretation is preferred, which is unsurprising as the EU justice system has a strongly purpose-oriented character.49 Of greater interest is the duty of consistent interpretation. This obligation requires courts to enforce the spirit of a directive when the national legislature has failed to capture it. In essence, it is a form of teleological interpretation ensuring the indirect effect of secondary legislation. However, CJEU case law has consistently affirmed that it is limited by the principle of legality: the interpretation cannot be contra legem and cannot lead to expanded criminal liability.50 The latter limitation encapsulates the legality principle by barring national courts from interpreting national law’s conformity with directives in such a way as to expand criminalisation. In other words, they cannot ‘save’ an unimplemented directive through interpretation. The prohibition on contra legem interpretations brings no added value. If the wording of a directive extends liability, its application would already be prohibited under the second limitation (the legality principle). If, on the other hand, the wording of a directive creates more lenient conditions, then two possibilities follow. If the secondary instrument is a directive as referred to in Article 83 TFEU, national authorities may apply the heavier penalty or liability foreseen in their national legislation, as Article 83 TFEU directives establish minimum standards, leaving national legislatures free to set higher standards. If the EU instrument is a directive in a different area, then courts are free to apply the more lenient interpretation in accordance with lex mitior. Either way, prohibiting contra legem interpretations is superfluous and may confuse national courts, for it does no more than elaborate on the second limitation (legality principle), but does not amount to a further limitation on the need for interpretations to conform to the relevant directive.51

17.3.5

Limiting the Principle of Legality

The principle of legality in EU law means that only actions explicitly prohibited by law may qualify as crimes or be punished as such. It thus applies both to definitions of criminal liability (acts and omissions) and to penalties, in keeping with Article 49 CFR. Moreover, this rule covers all aspects of the so-called

48 49 51

Case C-303/05 Advocaten voor de Wereld EU:C:2006:552, Opinion of AG Colomer, para 102. 50 Klip (n 1) 147. Case C-105/03 Maria Pupino EU:C:2005:386. A Klip, ‘Contra Legem’ (2014) 22 European Journal of Crime, Criminal Law and Criminal Justice 105, 112.

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general part – that is, general concepts of criminal liability such as participation and mens rea.52 The applicability of Article 49 CFR depends on whether a particular matter is covered by the principle of legality as interpreted in EU law (ie whether it relates to the determination of criminal liability or sanctions), and indeed whether the Charter is applicable in the first place. If, for example, the legal question falls outside EU law (Article 51 CFR), the EU principle of legality is not applicable (but the national principle might still apply). EU law follows the ECHR’s inclusive approach to defining criminal law, which is understood as encompassing some areas outside criminal law (eg competition law) in which punitive measures are imposed.53 In fact, a significant amount of our knowledge of this principle’s application in EU law comes from competition law jurisprudence.54 Yet the principle collapses when it comes to procedural law. In national law, norms of a procedural nature typically fall outside the ambit of legality, although a great deal of flexibility exists in grey zones such as jurisdiction and limitation periods. Certain aspects of the principle are nonetheless applied to procedural law; they include the requirement that coercive measures be codified, the need for precision and, in certain circumstances, non-retroactivity.55 In EU law, the distinction between substantive and procedural law has a strict and decisive influence. In the process, the legality principle has been largely limited to substantive law, thereby lowering the standard of protection. To illustrate this point, I will refer to three instances in which the CJEU has ruled against the application of the EU legality principle – a position that ought to be reconsidered.

17.3.5.1

Mutual Recognition

Does the legality principle apply to instruments providing for mutual recognition? Such instruments do not harmonise criminal liability as such, but rather create procedures of cooperation between Member States. Take, for example, the European arrest warrant (EAW). It is applicable to a variety of offences, but has no harmonising effect – that is to say, it does not establish common definitions.56 For the offences listed in Article 2(2) of the framework decision, the double criminality

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Case C-308/06 Intertanko EU:C:2008:312. Applying the so-called Engel criteria for determining what constitutes a criminal offence, eg Case T-299/08 Elf Aquitaine SA v Commission EU:T:2011:217. Dansk Rørindustri (n 16) para 219. Also Scoppola v Italy, App no 10249/03 (ECtHR, 17 September 2009). Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/1.

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rule does not apply, meaning that execution cannot be refused even when the act does not constitute an offence in the executing Member State. From a purely national point of view, the legality principle becomes highly relevant. Under the EAW scheme, a given Member State may be required to arrest an individual – for whom criminal proceedings have not even been initiated in its jurisdiction – for an act that its own law does not qualify as illegal. Hence, that Member State is obliged to enforce foreign legislation that conflicts with its own.57 From the perspective of legal certainty, the act in question is confusingly both criminalised and not criminalised in the executing Member State. But does this duality represent a violation of Article 49 CFR? In Advocaten voor de Wereld, this was precisely the question, as the elements of criminal liability underlying the offences listed in Article 2(2) were not defined. Hence, neither national authorities nor individuals could foresee with certainty when the EAW could be issued. The CJEU rejected the legal certainty argument, however. It reasoned instead that the EAW was not an instrument of harmonisation and that definitions of the chargeable offences could be found in national laws, specifically those of the issuing Member State so there was no violation of the legal certainty principle. The main thrust of the Court’s finding rested on two points: the Advocate General’s affirmation that the EAW was not a harmonisation instrument; and the fact that it was for the issuing Member State, not the executing Member State, to ensure that principles and rights would be upheld in the process of mutual recognition.58 The first point seems technically correct, for mutual recognition instruments do not create criminal offences. However, this does not stop uncertainty over criminalisation from emerging in a different way. By allowing the transnational application of coercive measures, instruments of mutual recognition create a new reality for criminal justice. In that new reality, the power to impose coercive measures is shared between the authorities of the two Member States. Whether seen in terms of legal pluralism59 or transnational justice, this reality influences the individual’s position. Mutual recognition establishes a transnational space for law enforcement where diverse definitions of offences co-exist. One practical consequence is that individuals ought to be informed of the criminal provisions on which Member States diverge, creating a climate of uncertainty in which it is difficult for individuals to anticipate criminalisation.60 From the individual’s 57

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P Asp, A von Hirsch and D Frände, ‘Double Criminality and Transnational Investigative Measures in EU Criminal Proceedings: Some Issues of Principle’ (2006) 11 Zeitschrift für Internationale Strafrechtsdogmatik 513. Case C-303/05 Advocaten voor de Wereld EU:C:2007:261. V Mitsilegas, EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe (Hart 2016) 128. E Herlin-Karnell, The Constitutional Dimension of European Criminal Law (Hart 2012) 27.

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point of view, this an unreasonable burden and degree of uncertainty – even though instruments of mutual recognition are procedural in nature. For this reason, the European Parliament has emphasised the need to harmonise those criminal offences that give rise to mutual recognition (instead of merely expanding the scope of European criminal offences).61 The CJEU’s second argument – that it is for the issuing Member State to ensure compliance with fundamental rights – has foreshadowed how conflicts of fundamental rights would subsequently be resolved. In Radu and ensuing cases, the Court insisted that respect for fundamental rights is not shared by the issuing and executing Member States, but that it rests with the issuing Member State only – thereby endorsing an absolute conception of mutual trust.62 However, starting with Aranyosi, the Court has shifted away from that position, by recognising that the executing Member State has the power to verify certain fundamental rights protections – though not those relating to the principle of legality and double criminality.63 The abolition of the double criminality rule had already met with criticism in academic literature.64 The automatic recognition of foreign judgments without ‘quality control’ – which covers not only double criminality but also the respect of fundamental/procedural rights in the issuing Member State – was not well received by some national courts, notably the German Constitutional Court.65 The emblematic model of mutual recognition embodied in the EAW has been reproduced in other instruments similarly abolishing double criminality for the offences they list. The lack of precision in defining offences has prompted some Member States to lay down preconditions. Germany, for example, secured an optout from the abolition of double criminality in Article 23(4) of the framework decision on the European evidence warrant.66 Accordingly, execution could be refused for some offences considered as excessively vague, unless the issuing Member State had verified that the offence met the criteria listed in Germany’s declaration annexed to the framework decision.

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European Parliament resolution of 22 May 2012 on an EU approach to criminal law (2010/2310(INI)), point 7. Case C-296/11 Radu EU:C:2013:39. Case C-404/15 Aranyosi and Ca˘lda˘raru EU:C:2016:198. S Peers, ‘Mutual Recognition and Criminal Law in the European Union: Has the Council Got It Wrong? (2004) 41 CMLRev 5; B Schünemann, ‘Die Entscheidung des Bundesverfassungsgerichts zum Europäischen Haftbefehl: Markiges Ergebnis, Enttäuschende Begründung’ (2005) 25 Der Strafverteidiger 681. 4 BVerfGE 113, 273. Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L350/72 (now repealed).

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There is disagreement over what the double criminality check actually entails. For offences that are not listed in the instrument, the executing Member State may opt to refuse execution failing double criminality. How, then, should the executing Member State determine whether the double criminality requirement has been met? In two cases, national courts asked whether such a determination ought to be in abstracto – that is, whether the behaviour is classified as criminal in both Member States (a normative check) – or whether it also needs to be in concreto – that is, whether the actual facts of the case are criminalised in the executing Member State. Obviously, the second approach would lead to an in-depth check by the executing Member State.67 In its Grundza judgment (relating to Framework Decision 2008/909 on custodial sentences), the CJEU embraced an in concreto review of double criminality: ‘the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal sanction in the territory of the executing State if they were present in that State’.68 In Piotrowski, on the other hand, an in abstracto examination without regard to the facts of the case was advocated. The case concerned the mandatory ground for refusing execution of EAWs issued for minors. In the executing Member State (Belgium), certain minors could be prosecuted but only on a case-by-case basis. Such a detailed investigation by the Belgian authorities was not permitted by the CJEU.69 How far the executing Member State should go when checking double criminality remains vague. The confusion stems partly from the use of the terms abstracto/concreto, which are ambiguous and have little normative significance.70 A sliding scale of abstractness/concreteness could offer more options by allowing authorities to consider the immorality of the act, constitutive elements (solely actus reus, or additionally mens rea, and so on) and factual elements. Advocate General Bobek argued in favour of a functional analysis – that is, how the instrument in question actually operates between systems, rather than resorting to ‘terminological stickers’. According to the opinion, this should work as follows: delocalisation of the basic elements of the act (from the EAW issued by the issuing Member State) and their subsumption under whatever offence corresponds to those elements in the executing Member State (regardless of how it is classified).71 The control would be diagonal (from the facts in the issuing Member State to the

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FGR Yamuza, ‘CJEU Case Law on Double Criminality: The Grundza-Piotrowski Paradox? Some Notes regarding the Puigdemont Case’ (2019) 19 ERA Forum 465, 468. 69 Case C-289/15 Grundza EU:C:2017:4, para 54. Case C-367/16 Piotrowski EU:C:2018:27. Case C-289/15 Grundza EU:C:2016:622, Opinion of AG Bobek, para 23; Grundza (n 68) para 25. Grundza, Opinion AG Bobek (n 70) para 51; for a simplification of the standard methodology in judicial reasoning, see W Sax, Das Strafrechtliche “Analogieverbot” (Vandenhoeck & Ruprecht 1953) 47.

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law in the executing Member State), not horizontal (between the elements constitutive of offences). Accordingly, an absolute match of constitutive elements is unnecessary. This method, however, is largely based on the assumed separation of facts and norms in interpretation, which does not hold true for criminal law practice, where normative concepts are often coloured by facts.72 Furthermore, the facts that the executing court selects in the process of ‘delocalisation’ could play a determining role. Depending on how many facts are taken into account – age, or additional personal circumstances – the check in Piotrowski could result in execution being refused. It is inevitable that facts will be taken into account when checking for double criminality. The two cases differ on how detailed that control should be, but offer little guidance. Advocate General Bobek proposed that ‘basic factual elements from the issuing State’ be subsumed under the laws of the executing Member State, while the Piotrowski judgment put forward a more nuanced approach, excluding from the facts to be considered ‘matters which are … subjective, such as the individual characteristics’. This begs the question of what matters are subjective and what matters are not.73 Furthermore, the Puigdemont EAW case shows how difficult it can be to disentangle the facts and the constitutive elements of an offence. The German court largely followed this delocalisation and subsumption method and compared the resulting charges.74 However, it considered the whole set of facts when assessing whether the violence employed during the act matched the normative concept of violence in the equivalent German provision.75 Was it necessary for the German court to do this, since, as we have seen, constitutive elements need not match absolutely? Or, was it important because, for example, the level of violence mirrored the seriousness of a case that qualified as high treason (the immorality of the act)? What determines when the match is close enough to fulfil the double criminality precondition?

17.3.5.2

Rules on Jurisdiction

Although jurisdiction rules do not in themselves define criminal liability or sanctions, they do determine which country has competence to try a case and, therefore, which criminal code applies. There is no harmonisation instrument that addresses this topic in EU law.76 In national law, jurisdiction usually falls outside the bounds of the legality principle, particularly in the sense that legislation may

72

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BMJ van Klink, ‘Bedreigt Rechtsvinding de Rechtszekerheid? Een Kritisch-Hermeneutische Visie op de Rol van de Rechter in het Materiële Strafrecht’ (2001) 31 Delikt en Delinkwent 688. Grundza, Opinion AG Bobek (n 70)para 56; Piotrowski (n 69) para 52. 75 OLG Schleswig (5 April 2018) 1 Ausl (A) 18/18 (20/18) para 26. ibid para 31. Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [2009] OJ L328/42.

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change jurisdiction retroactively.77 Many scholars, however, have strongly argued in favour of the application of Article 49 CFR to rules on jurisdiction.78 Currently, national authorities and individuals cannot determine with certainty the legal regime that has jurisdiction in a cross-border case, because national jurisdictional rules differ. Within ‘an area of freedom, security and justice without internal frontiers’ (Article 3(2) TEU), knowing which criminal code (ie of which country) applies becomes a matter of substantive criminal law in cross-border cases, because multiple definitions co-exist for the same offence. That these rules are often considered procedural in nature should be re-evaluated. The principle of legality should demand that instruments harmonising rules on jurisdiction be adopted, as permitted by Article 82 TFEU.

17.3.5.3

Limitation Rules

The third illustration of why the formal classification of rules as procedural should not be the decisive criterion for demarcating the EU legality principle is limitation rules. Also known as statutes of limitation or limitation periods, they cause EU law a good deal of trouble. A limitation rule defines the length of time during which the initiation of prosecution action is permissible. While the criminal character of an act has no expiry date, its prosecution does. Understandably, limitation rules do not define criminal offences, but they do ensure legal certainty by affirming an individual’s right not to be prosecuted after the limitation period has elapsed. Reviving the possibility of prosecution (the retroactive extension of limitation periods for offences already time-barred) represents an extreme scenario prohibited by the ECHR and national systems.79 The more common scenario is the extension of limitation periods that have not expired. National systems differ, but most restrict such extensions. For example, Dutch law allows the retroactive extension of limitation periods only for serious offences, while Italy applies a thoroughgoing prohibition.80 Although limitation rules have not yet

77

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80

M Böse, ‘Choice of Forum and Jurisdiction’ in M Luchtman (ed), Choice of Forum in Cooperation against EU Financial Crime: Freedom, Security and Justice and the Protection of Specific EU Interests (Eleven 2013) 80. M Luchtman, ‘Choice of Forum and the Prosecution of Cross-Border Crime in the European Union: What Role for the Legality Principle?’ in M Luchtman (ed), Choice of Forum in Cooperation against EU Financial Crime: Freedom, Security and Justice and the Protection of Specific EU Interests, (Eleven 2013) 23. See Coëme v Belgium, App no 32492/96 (ECtHR, 22 June 2000) para 149; Dutch law: HR 17 December 1996 NJ 1997, 26; German law: W Joecks and K Miebach, Münchener Kommentar zum Strafgesetzbuch (CH Beck 2011) para 1, mn 17. International criminal law is an exception; see Kononov v Latvia, App no 36376/04 (ECtHR, 17 May 2010). HR 18 September 2001 NJ 2002 559.

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been harmonised by the EU,81 the matter was discussed in a series of preliminary rulings in the Taricco saga. The question was whether Article 325 TFEU obliged national authorities to prolong current limitation periods. The Italian law fixed short limitation periods, whose prolongation was necessary to ensure the efficient prosecution of a number of serious EU fraud cases.82 But does Article 49 CFR allow such retroactive prolongation? The CJEU chose to exclude limitation rules from the scope of Article 49 CFR because they comprise procedural norms (following ECtHR case law on that point). However, as explained, national law does not easily support such a narrow application of the principle of legality. More attention on national law than on ECHR case law would be prudent here. Ignoring national traditions has come at a high price, as in Taricco II when the CJEU was forced to allow the higher Italian standards to apply (where limitation rules are considered substantive law).83 The frontier between procedural and substantive law is illusionary and should not be dogmatically employed to determine the scope of Article 49 CFR. No consensus exists as to what makes a norm substantive or procedural. For example, in Scoppola, the ECtHR applied Article 7 ECHR to a norm it regarded as substantive but which was qualified as procedural under national law.84 In a system still in transition, where new types of coercion are always prone to arise, legal principles ought to be interpreted in a far-sighted manner. Take, for example, investigative measures, a procedural topic. In national law, the legality principle often applies to coercive measures by requiring that they be precisely codified in legislation.85 The European Public Prosecutor’s Office can order such measures.86 Is Article 49 CFR not relevant here? Interestingly, ECHR jurisprudence deals with the precision of investigative measures under the right to privacy – but not under the legality principle. Part of the test is nonetheless whether investigative measures are based on the law, and for that part of the test the jurisprudence on the application of the principle of legality is actually cited as relevant to determine what constitutes law; the same goes for arrest and detention orders.87 The question raised here is whether instruments of mutual recognition pertinent to evidence – namely, European Investigation Orders – create uncertainty for individuals attempting to

81

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This changes somewhat with Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law [2017] OJ L198/29. 83 Case C-105/14 Taricco and Others EU:C:2015:555 (Taricco I). Taricco II (n 17). 85 Scoppola v Italy (n 55). Dutch Code of Criminal Procedure, s 1. Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) [2017] OJ L283/ 1. Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) para 62.

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predict the conditions for investigative measures.88 Again, individuals are asked to foresee and be aware of procedural law rules in multiple jurisdictions. Is this something that the EU principle of legality should address? It is arguable that the classification of laws as either procedural or substantive misses the point. The focus should be on whether a situation affects the individual’s position in a way that is linked to the legality principle. Advocate General Bobek was right in arguing that: There is a lot to be said for such an effect – or impact – oriented assessment, which is less concerned with the finesses of individual national taxonomies, which may of course differ across the Member States, and looks more concretely into the genuine operation of the rules. Above all, however, perhaps it best captures what the focus of effective protection of fundamental rights ought to be: the individual and the impact a rule has on his position, not the taxonomic labels attached to it by the respective national law.89

17.4

Challenges for the Legality Principle in EU Law

The principle of legality is deeply embedded in the application of EU law, albeit not without inconsistencies and gaps. In areas where the principle of legality appears prima facie irrelevant (eg mutual recognition), there are doubts as to whether current praxis sufficiently caters to the problems. I identify three difficulties that need to be addressed if we are to unlock the full potential of this principle and overcome the problems I have identified above: the absence of a common and clear understanding of the principle’s theoretical rationales; the AFSJ’s system of multilevel decision-making; and the disproportionate predominance of crime control over legal protection in EU law.

17.4.1

Unclear Theoretical Rationales

What is the purpose of the legality principle? It regulates the application of human rights to criminal law (eg individual autonomy) and the level (and type) of protection it affords consequently depends on the particular right concerned. There is no reason why criminal legislation cannot be retroactive or vague, unless this would impact on pre-established values. The principle channels various values and human rights – the rule of law, of course; democracy and the separation of powers; individual autonomy and freedom; legal certainty; human dignity – but 88

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Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1. Scialdone, Opinion AG Bobek (n 40) para 152.

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also key concepts in criminal law, such as the principle of guilt and the presumption of innocence.90 Its application is justified by the principle’s theoretical underpinnings; for example, the discretion afforded to criminal courts depends on how the separation of powers is articulated in that system. But what does the legality principle actually protect in EU law? There has been little reflection on this albeit essential question. The CJEU’s case law on the principle has developed in a spontaneous and intuitive fashion. The Court defined the principle’s application sporadically and only to the extent necessary for each case, with little reference to the rationales justifying its interpretation. Many of the dead-ends reached in theory and practice are due to oversights in determining the principle’s theoretical background. An example is the EU’s so-called democratic deficit and the legitimacy of its legislating on criminal law. Unlike national law, European democracy is postnational, detached from the Westphalian model of the nation state – it responds to no demos.91 Some scholars have consequently questioned the legitimacy of EU legislation in criminal matters for being at odds with the legality principle.92 The practical ramifications of this narrative include the German Constitutional Court’s argument that the traditional concept of democracy limits the competences of the EU.93 Yet the problem lies deeper; it turns on how democracy is defined. The development of post-national theories of democracy by political theorists94 has led to a growing body of scholarship on the legitimacy of European criminal law.95 However, none of these novel theories is used by the CJEU to explain why the principle applies in the way it does. For example, what is the explanation for lex nationalis? Why are there no regulations defining criminal liability? The explanation would appear to lie in the institutional design of EU law (Article 83 TFEU allows only for directives) and the concept of direct effect.96 Would an amendment

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Peristeridou The Principle of Legality (n 21) 36–63. N Deitelhoff and J Steffek (eds), Was Bleibt vom Staat? Demokratie, Recht und Verfassung im Globalen Zeitalter (Campus 2009) 15–21. M Kaiafa-Gbandi, ‘The Development towards Harmonisation within Criminal Law in the European Union: A Citizen’s Perspective’ (2001) 7 European Journal of Crime, Criminal Law and Criminal Justice 239; European Criminal Policy Initiative, ‘A Manifesto on European Criminal Policy’ [2009] Zeitschrift für Internationale Strafrechtsdogmatik 707. BVerfG, 2 BvE 2/08 (30 June 2009) paras 358, 363. D Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Polity Press 1995); K Nicolaı¨des, ‘The Idea of European Demoicracy’ in J Dickson and P Eleftheriadis (eds), Philosophical Foundations of European Union Law (OUP 2012). F Meyer, Strafrechtsgenese in Internationalen Organisationen: Eine Untersuchung der Strukturen und Legitimationsvoraussetzungen Strafrechtlicher Normbildungsprozesse in Mehrebenensystemen (Nomos 2012) 711–18. Article 325 TFEU might be interpreted to that effect; see LS Neumann, ‘The Shared Competence for Criminal Law’ (2015) 5 European Criminal Law Review 325.

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to the TFEU suffice to include regulations? There is no satisfying reason for the potential violations of the legality principle.97 For example, do national parliaments (and the obligation to implement criminal law instruments) offer additional protection of individuals? These are questions worth raising. The major impact of the failure to anchor legality firmly in the EU’s core values is found in the field of mutual recognition. The criminal procedures involved are transnational and have led to power-sharing in criminal law enforcement: one Member State defines the offences and assigns culpability while another applies the coercive measures. Given the expectation that these powers will be used responsibly when it comes to individual rights, we can speak of Member States sharing the responsibility not to violate them. Moreover, if these procedures are seen as unified rather than separate, then the protection of principles and rights should also be shared.98 The procedural rights directives form a stepping stone to the transnationalisation of rights.99 But what about principles? They, too, have a transnational dimension and need to be applied transnationally. As yet, the principle of legality in EU law remains heavily influenced by national doctrines. It has not been adapted to meet new transnational challenges. In a transnational setting, the foreseeability of criminalisation is tested differently than in purely national procedures. The time is ripe to redefine principles in the context of mutual recognition with a view to eliminating the arbitrariness encountered in transnational situations. A move in this direction was made in Aranyosi, with the executing Member State being authorised to check some aspects of fundamental rights protection related to inhuman or degrading detention practices.100 This authority was recently extended to cover the right to trial by an independent and impartial court.101 There is every reason to think that mutual recognition is heading for a substantive reform that will result in proper attention being paid to principles such as proportionality and legality.

17.4.2

Multilevel Justice

The face of authority matters in criminal law. The AFSJ operates vertically at two levels – through overarching European institutions (legislature and CJEU) at pan-EU level, and domestic institutions (legislature and courts) at national level.

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The court’s reasoning on lex nationalis is repetitive and stereotypical. S Gless, ‘Bird’s-Eye View and Worm’s-Eye View: Towards a Defendant-Based Approach in Transnational Criminal Law’ (2015) 6 Transnational Legal Theory 117. eg Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1. 101 Aranyosi and Ca˘lda˘raru (n 63). Case C-216/18 PPU LM EU:C:2018:586.

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How is responsibility for conforming to the legality principle divided between the two? Does the principle apply to both levels, and if so, how? Take, for example, lex certa. Article 83 TFEU directives establish minimum standards, so some flexibility in the wording is required. But should directives aim to be precise, anyway? According to the CJEU, only national legislation needs to comply with the legality principle, as directives rely on implementing legislation.102 This is a short-sighted attitude. First, the quality of national implementing legislation depends largely on the quality of the directive. National legislators cannot fulfil their lex certa obligation if the directive is too vague at the outset. Second, the implementation measures often refer directly to the directives on which they are based; foreseeability is therefore affected.103 At a minimum, the EU legislator must ensure that national authorities are able to produce quality legislation. Another challenge arises from potentially conflicting European and national standards. Article 49 CFR generally co-exists with its national counterparts. What happens if legality in the EU realm conflicts with national legality, especially if the latter prescribes higher standards? In Taricco I, Article 49 CFR did not apply to limitation periods, but the Italian principle of legality did. The follow-up question to the CJEU was: can we apply our higher national standards in this situation (Taricco II)? In Meloni and Jeremy F, the application of national standards had depended on the level of harmonisation: the less harmonisation, the more discretion Member States enjoyed to apply their own standards.104 In Taricco II, the CJEU followed the same line of reasoning: limitation rules were not harmonised, so national standards could be applied. For the CJEU, the lack of harmonised limitation rules meant not only that national limitation rules applied (as in Jeremy F) but that national standards of fundamental rights applied, too. This begs more perplexing questions. Other general concepts of criminal liability, such as mens rea and actus reus, also have yet to be harmonised. Does it therefore follow that if, for example, the definition of ‘attempt’ is at issue, then the legality principle as understood in national law will apply if it prescribes a higher level of protection?105 Most crucially, one must enquire as to the impact multilevel justice has on individuals and foreseeability. Can individuals be expected to be aware of the intricacies of such a judicial order? The principle of legality as a fundamental

102 104 105

103 Intertanko (n 52). Peristeridou ‘The Principle of “Lex Certa”’ (n 27) 85–90. Case C-399/11 Melloni EU:C:2013:107; Case C-168/13 PPU Jeremy F EU:C:2013:358. C Peristeridou and J Ouwerkerk, ‘A Bridge over Troubled Water: A Criminal Lawyers’ Response to Taricco II’ (Verfassungsblog, 12 December 2017), www.verfassungsblog.de/a-bridge-overtroubled-water-a-criminal-lawyers-response-to-taricco-ii/.

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right within AFSJ ought to shield individuals from unreasonable expectations in terms of foreseeability. A good example is lex mitior: as Advocate General Bobek pointed out, individuals cannot be required to analyse EU law and national law on their own in order to determine the version of criminal liability that is compatible with EU law.106 If priority is given to Article 49 CFR (including lex mitior), the legal uncertainty caused by the multilevel system of justice that operates within the AFSJ will be removed. Hence, lex mitior should prevail over EU primacy, even if its status as a principle in its own right is open to question.

17.4.3

Imbalance between Crime Control and Due Process

Finally, the principle of legality is aimed at achieving a balance between crime control (security) and due process (liberty). Finding a middle ground gives criminal law legitimacy. For example, a purposefully vague description of criminal liability (as seen in relation to terrorism in Section 17.3.2 above) betrays a political stance that favours security over freedom. When discussing this principle, reference to EU political choices is inevitable. The evidence suggests that the EU legal system has been driven by a strong instrumentalist and efficiency-oriented agenda. The principle of effectiveness has evolved into an institutional mantra.107 The development of European criminal law has been influenced historically by the desire to counterbalance a spillover from the internal market,108 as well as, more recently, a zeitgeist marked by digitisation and terrorism.109 The consequences for the principle of legality are twofold. First, the level of protection may suffer when the principle impedes the efficient application of EU law. Second, the principle’s application is sometimes motivated by the efficient application of EU law rather than by its foundational values. Lex nationalis, for example, functions as a device to pressure national authorities into implementing EU law, not as an expression of the post-national democratic theory behind the system. Likewise, mutual recognition and trust have been interpreted as pathways towards greater efficiency and crime control. The narrative on mutual responsibility for protecting rights is recent. Transnationalism has been applied selectively, mainly targeting coercive measures, but barely protecting individuals. Although this appears to have changed since Aranyosi, one thing remains certain: if the legality principle is to deploy its protective potential in mutual recognition, how

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Scialdone, Opinion AG Bobek (n 40) para 167. M Ross, ‘Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality?’ (2006) 31 ELRev 480. V Mitsilegas, ‘From Overcriminalisation to Decriminalisation: The Many Faces of Effectiveness in European Criminal Law’ (2014) 5 New Journal of European Criminal Law 419. D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP 2001) 1–53.

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it is to be applied in a transnational setting needs to be thought through – a task that may require adapting the principle to new challenges. To cite a more concrete example of how efficiency colonises the principle of legality, the conflict between the European and national legality principles in Taricco II would not have arisen at all if, in Taricco I, the CJEU had not interpreted Article 49 CFR so narrowly. A legitimate choice between crime control and due process depends on the transparency and persuasiveness of the antithetical interests at stake. If Article 49 CFR prohibited the retroactive extension of limitation periods, the effectiveness of EU law would be curtailed and many serious EU fraud cases would be time-barred in Italy. On the other hand, a retroactive extension of limitation periods would seriously frustrate the legitimate expectations of individuals. The CJEU should have asked itself whether the unforeseeability of criminalisation was a stronger argument than the need to prosecute fraud cases. In the end, the Court evaded the issue by basing its ruling on technical grounds – namely, the procedural nature of limitation rules. Hence, the judgment was not convincing and, for good reason, led to a sequel. Excluding limitation periods from this principle’s scope was unexpected, as many national traditions do not exclude them. Article 7 ECHR has a narrower scope on this matter, but Article 52(3) CFR allows EU law to be more extensive, and that is further supported by precedent (when lex mitior was recognised as a principle of EU law, the ECtHR still did not consider it part of the legality principle).110 Most importantly, however, none of these arguments got to the main point – namely, the conflict between foreseeability and the effective protection of the EU’s financial interests. The Taricco saga demonstrates the unhealthy predominance of EU law effectiveness as a narrative in European criminal law and reveals a real danger for the Charter: that rights and principles will become subservient to policies, mere tools at the service of the ephemeral needs of a constantly changing Europe. 110

C Peristeridou and T Spronken, ‘Scoppola tegen Italie’ (2009) 123 European Human Rights Cases.

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18

The Interpretation and Application of the Ne Bis In Idem Principle in the EU Area of Freedom, Security and Justice BAS VAN BOCKEL

18.1

Introduction

The principle of ne bis in idem, which continues to attract a great deal of scholarly attention,1 is a fundamental right that forbids the prosecution of a defendant more than once for the same offence, act or facts. The principle links up to ‘the very essence of a fair trial’ and minimises the arbitrary element in legal norms and decisions.2 It has also played a seminal role in the development of CJEU case law in the Area of Freedom, Security and Justice (AFSJ). One reason for this is that Article 54 of the Convention on the Implementation of the Schengen Agreement (CISA) has played a pivotal role in the development of the ‘European’ ne bis in idem principle; another is that the substance of the guarantee is closely linked to the principle of mutual recognition. As further discussed below, the ne bis in idem principle forms a possible ground for non-recognition or non-execution of judicial decisions in criminal matters emanating from other Member States, mainly in the context of the European arrest warrant (‘EAW’). In view of the significance of the ne bis in idem principle for the AFSJ, this chapter begins by describing the sources (Section 18.2) and the constitutive elements (Section 18.3) of that principle. Special attention is given to recent developments in case law regarding the interaction between criminal, administrative and tax law. The scope of application of the ne bis in idem principle is then discussed in Section 18.4. Lastly, the chapter offers some insight into two aspects of the application of the ne bis in idem principle within the AFSJ: the enforcement

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See, amongst (many) others, A Weyembergh, ‘La Jurisprudence de la CJ relative au Principe Ne bis in idem: Une Contribution Essentielle à la Reconnaissance Mutuelle en Matière Pénale in CJEU (ed), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law – La Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence (Springer 2013); Rosanò, ‘Ne Bis Interpretatio In Idem? The Two Faces of the Ne Bis In Idem Principle in the Case Law of the European Court of Justice’ (2017) 18 German Law Journal 39. Nikitin v Russia App no 50178/99 (ECtHR, 20 July 2004) para 57; see also M Fletcher, ‘The Problem of Multiple Criminal Prosecutions: Building an Effective EU Response’ (2007) 26 YEL 33.

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requirement of Article 54 CISA (Section 18.5) and the risk of impunity arising from the application of the principle (Section 18.6).

18.2 Sources Article 4 of Protocol 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 50 of the Charter of Fundamental Rights of the European Union (Charter), and Article 54 CISA are of particular importance for the development of the ne bis in idem principle in the EU legal order.

18.2.1 The Relevant Provisions According to Article 4 of Protocol 7 to the ECHR. 1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

Article 50 of the Charter provides that: No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

According to Article 54 CISA: A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.

Article 55(1) CISA provides that Article 54 CISA shall not apply to (a) crimes committed in whole or in part in the territory of the second state to initiate the prosecution, (b) crimes affecting the states’ ‘essential interests’ and (c) crimes which have been committed by the officials of the (second) state in the exercise of their duties.3 3

A prior declaration, however, is required for a Member State to invoke this exception.

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Although the language of Article 54 CISA is more precise than that of Article 4 of ECHR Protocol 7 or Article 50 of the Charter, the CJEU’s interpretation and application of the provision has had a decisive influence on the development of ECtHR and CJEU case law on the ne bis in idem principle more generally. Additionally, there are ne bis in idem provisions in several instruments aimed at establishing judicial cooperation in the field of criminal law within the EU. The most notable example is Article 3(2) of the framework decision on the European arrest warrant (EAW FD), which requires the executing judicial authority to refuse to execute the European arrest warrant if the person in question has been finally judged in a Member State for the same acts.

18.2.2 A Textual Comparison The wording and scope of Article 54 CISA, which applies exclusively in situations between the Schengen states, and the wide-ranging exceptions listed in Article 55 CISA reflect the provision’s particular function in the AFSJ. Conversely, Article 4 of ECHR Protocol 7 merely offers protection against repeated trial or punishment occurring in one and the same state. Article 50 of the Charter is worded similarly to Article 4 of ECHR Protocol 7, but expands the geographical scope of its application from the national level to the level of the EU (‘within the Union’). In contrast to Article 50 of the Charter and Article 54 CISA, Article 4 of ECHR Protocol 7 also contains an exception to the ne bis in idem rule allowing for a second trial when new or newly discovered facts (novum) become known or if there has been a ‘fundamental defect in the previous proceedings, which could affect the outcome of the case’. According to the Explanatory Report to Protocol 7, this exception covers situations in which there is new or newly discovered evidence. Furthermore, the Explanatory Report states that Article 4 of ECHR Protocol 7 ‘does not prevent a reopening of the proceedings in favour of the convicted person or any changing of the judgment to the benefit of a convicted person’.4 Unlike Article 54 CISA, Article 4 of ECHR Protocol 7 does not require the penalty imposed to have already been enforced or to be undergoing enforcement. Taken together, the textual differences are substantial, adding complexity to the application and interpretation of the ne bis in idem principle in the AFSJ. With regard to the substance of the ne bis in idem guarantee, Article 4of ECHR Protocol 7 and Article 50 of the Charter both refer to the prohibition of double prosecution or double punishment (‘tried or punished’), whereas Articles 54 and 56 CISA draw a distinction between those guarantees. To date, however, it is clear from the case law of the CJEU and the ECtHR that the ne bis in idem rule

4

Council of Europe, ‘Explanatory Report to the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms’ ETS 117 (1984) para 31.

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prohibits only double prosecution (‘tried’). The prohibition of double punishment (‘punished’), which solely prevents a subject from being punished twice, relates to the more general principle of proportionality in EU law and therefore forms the ‘lesser’ of the two guarantees. The CJEU has confirmed this position in a number of competition cases.5 Similarly, in its landmark Zolotukhin judgment, the Grand Chamber of the ECtHR held that ‘Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence”’, and not merely punishment.6 This jurisprudential clarification has significantly reinforced the protection offered by the ne bis in idem principle in EU law, for the prohibition of double punishment offers a much lower level of protection for the individual.

18.3 The Main Elements of the Guarantee 18.3.1 The Previous Decision’s Finality (‘Bis’) 18.3.1.1

Finality

The ne bis in idem principle comprises two main substantive elements: bis and idem. The bis element refers to a subject being tried twice – that is, when the outcome of the first proceedings has become final (res iudicata). Finality is not merely a legal technicality; it is fundamental to both criminal law and law in general. The question is therefore not limited to the application of the ne bis in idem principle. The sociologist Max Weber defined the modern state as ‘a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’.7 In order to realise this monopoly, the legal actions of the state must ultimately settle any given matter in an effective manner, bringing closure for victims, offenders and society as a whole. For legal purposes, closure is marked either by the finality of the outcome of the proceedings, or by a statutory time bar. The transnational context of the AFSJ introduces a paradigm shift in this regard. Mutual recognition implies that the finality of the outcome of legal action is no longer confined to a single jurisdiction, but extends also to other EU Member States. This amounts to a fundamental change in the way we perceive finality and its function within legal systems and societies, and presupposes mutual trust between the Member States within the AFSJ in the face of the considerable differences among their national systems of criminal law and procedure.

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Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99P Limburgse Vinyl Maatschappij and Others EU:C:2002:582; Case C-397/03P, Lysine, EU:C:2006:328; Case C-137/85 Maizena EU:C:1987:493, para 15. Sergey Zolotukhin v Russia App no 14939/03 (ECtHR, 10 February 2009). HH Gerth and C Wright Mills (trs, eds), From Max Weber: Essays in Sociology (OUP 1946) 78 (emphasis in original).

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According to established case law, a decision is final when there are no more ordinary remedies available, where all remedies have been exhausted, or where the time limits for those remedies have expired.8 Ongoing proceedings and decisions that are still open to appeal have no ne bis in idem effect.9 In order to prevent parallel proceedings or conflicts of jurisdiction, additional measures are therefore needed.10 The finality of a decision ‘extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question’.11 According to the CJEU, there must have been at least a substantive determination of the facts and the pleas of the case in order for a decision’s finality to be ascertained, except where decisions discontinuing the prosecution for reasons of a time bar are concerned.12 A decision by the police to discontinue an investigation, for example, does not trigger ne bis in idem protection if that decision does not have the effect of barring further prosecution under national law, regardless of any assessment of the facts of the case.13 This accords with the rationale of finality and its function within legal systems: from the perspective of material justice, a matter cannot be deemed to have been adequately addressed merely because, for instance, the police do not find further investigation worthwhile. A matter does, however, become ‘finished business’ when sufficient time has elapsed, triggering the application of a time bar. The CJEU offered further substantive clarification of the rationale and importance of finality and its link to mutual trust in the AFSJ in its Kossowski judgment,14 where it held that a (non-judicial) decision to terminate the investigation: cannot be characterised as a final decision for the purposes of Article 54 of the CISA when it is clear from the reasons actually stated in that decision that there was no detailed investigation, as otherwise the mutual trust between the Member States could be undermined. In that regard, the fact that neither the victim nor a potential witness was interviewed is an indication that no detailed investigation was undertaken in the case in the main proceedings.15

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ibid para 107. The possibility of bringing extraordinary remedies under national law does not affect the final nature of the previous decision. See, in this regard, Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [2009] OJ L328/42, which establishes a soft-law mechanism for the prevention and resolution of conflicts of jurisdictions. Case C-462/05 Commission v Portugal EU:C:2008:337, para 23. 13 Case C-469/03 Miraglia EU:C:2005:156. Case C-419/07 Turansky EU:C:2008:768. 15 Case C-486/14 Kossowski EU:C:2016:483. ibid para 53.

Interpretation and Application of Ne Bis In Idem

18.3.1.2

Finality in the Interaction between Criminal, Administrative and Tax Law: Recent Developments in ECtHR and CJEU Case Law

The requirement of the finality of the first decision raises questions when different areas of law, like tax law and criminal or administrative law, interact. In A and B v Norway the Grand Chamber of the ECtHR made it clear that the finality requirement does not mean that proceedings that are ‘sufficiently connected … in time’ and form a coherent whole must be ‘conducted simultaneously from beginning to end’, provided that the ‘accumulated legal responses do not represent an excessive burden for the individual concerned’.16 Following A and B v Norway, the CJEU handed down judgments in three Italian cases related to this issue.17 The central question in all three cases was whether the cumulative possibilities of punishing certain financial offences (VAT offences, market manipulation and insider trading) under Italian administrative and criminal law violated the ne bis in idem principle. The Court held that the classification of what is ‘criminal’ for the purposes of Article 50 of the Charter is independent of its classification under domestic law. In the cases in question, the nature and severity of the administrative penalties imposed led the CJEU to classify them as criminal. Furthermore, none of these cases raised any doubts as to the identity of the facts under consideration. Because such situations would limit the right not to be tried or punished twice for the same offence under Article 50 of the Charter, the question was whether such a limitation was justified under Article 52(1) of the Charter. According to Article 52(1), any limitation must be provided for by law, respect the essence of the right and, while remaining proportionate, be necessary to the objectives of general interest recognised by the EU or to protect the rights of others. In the Garlsson judgment, the CJEU reiterated that the stipulation from Article 52(3) of the Charter’s (that the meaning and scope of Charter rights also contained in the ECHR shall be identical) ought to be read as safeguarding the necessary consistency, without forasmuch affecting the autonomy of EU law and the CJEU.18 The ECtHR had already ruled that, in order for dual proceedings to comply with the ne bis in idem principle, the state had to show that the two procedures were sufficiently closely connected both in substance and in time, meaning that they 16

17

18

A and B v Norway Apps nos 24130/11 and 29758/11 (ECtHR, 15 November 2016) paras 131, 134, 121; see also Lucky Dev App no 7356/10 (ECtHR, 27 November 2014). In Nilsson v Sweden App no 73661/01 (ECtHR, 13 December 2005), the Court took the opposite view and held that the withdrawal of a driving licence had ne bis in idem effect and barred further criminal prosecution; see also Jóhannesson v Iceland App no 22007/11 (ECtHR, 18 May 2017). Case C-524/15 Menci EU:C:2018:197; Case C-537/16 Garlsson Real Estate SA EU:C:2018:193; Joined Cases C-596/16 and C-597/16 Di Puma and Zecca EU:C:2018:192. Garlsson (n 17) paras 24–26.

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were complementary, closely connected in time and that the overall punishment was proportionate and foreseeable. To assess whether a sufficiently close connection in substance existed, the ECtHR examined: (1) whether the proceedings pursued complementary purposes, thus addressing – both in abstracto and in concreto – different aspects of the misconduct; (2) whether the dual proceedings were foreseeable, (3) whether duplication in the collection and assessment of evidence was avoided as much as possible, with both proceedings relying on the same establishment of the facts and above all (4) whether the second proceeding in sentencing took into account the previous punishment, thus ensuring the overall proportionality of the penalties imposed.19 The approach taken by the CJEU in the judgments discussed here (by and large) accords with that of the ECtHR, in particular insofar as it requires (1) the penal and administrative proceedings and penalties to pursue additional objectives; (2) a legal basis making the potential of dual proceedings for the offences in question sufficiently clear and foreseeable; (3) rules on coordination ensuring that any disadvantages for those affected are limited to what is strictly necessary; and (4) rules  designed to ensure that the severity of all penalties imposed is limited to what is strictly necessary in relation to the seriousness of the offence – a requirement also enshrined in Article 49(3) of the Charter. Although this formulation is not identical to that of the ECtHR in A and B v Norway,20 the degree of convergence is very high.21 While the judgment raises new questions,22 it nonetheless offers a possible solution to the problem created by the system for which many Member States have opted and which allows for a combination of criminal law and administrative law sanctions for the same infringement. What is more, in the present author’s opinion, the solution formulated by the ECtHR and subsequently adopted by the CJEU does not, go against the spirit and fundamental purpose of the ne bis in idem principle. In essence, the principle means that defendants should not be required to defend themselves more than once against the legal consequences of their conduct. It is not easy to see how the ECtHR could have arrived at any other solution to this particular issue, and the existence of two separate lines of European

19 20 21

22

A and B v Norway (n 16) para 132. The CJEU does not require a temporal connection between the proceedings. The Advocate General argued for a different approach: ‘if the tax penalty is criminal in nature for the purposes of Article 50 of the Charter and has become final … that provision precludes criminal proceedings in respect of the same acts from being brought against the same person’. Case C-524/15 Menci EU:C:2017:667, Opinion of AG Campos Sánchez-Bordona, para 109. For a more detailed overview of the ensuing debate, see esp M Vetzo, ‘The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma’ 2018 (2) Review of European Administrative Law 55.

Interpretation and Application of Ne Bis In Idem

case law on this particular point may also have complicated matters. The present situation maintains a high level of convergence between the case law of the two European courts. Yet, it is clearly a solution de dépannage, which makes the interpretation and application of the ne bis in idem principle more difficult. It is worth pointing out that the test set forth by the CJEU for the purpose of dual proceedings plays out differently in each of the three cases. In Garlsson, the companies in question had already been finally convicted and punished criminally, raising the question of whether they could be subsequently penalised under administrative law. The CJEU held that doing so would exceed what is strictly necessary, at least insofar as the criminal conviction punished the offence in an effective, proportionate and dissuasive manner – which the referring court was to determine.23 Menci concerned a criminal prosecution following the imposition of a final administrative fine and, in this case, the CJEU found no infringement of Article 50 of the Charter. It would appear from this that criminal prosecution is permitted if it follows administrative prosecution, but not vice versa. In Di Puma, the administrative fine came after the criminal prosecution, but in this case the accused had ultimately been acquitted rather than convicted. The CJEU found this sequence of events clearly in excess of what was necessary, and therefore prohibited by Article 50 of the Charter.24 It was only in Menci that the Court expressly held that a duplication of proceedings is – in principle – allowed. Some inconsistencies vis-à-vis the case law of the ECtHR remained, however. In finding that its interpretation does not fall below the level of protection granted under the ECHR, the CJEU overlooks the ECtHR’s requirement of a temporal connection between the two sets of proceedings – the lack of which may give rise to a violation of Article 4 of ECHR Protocol 7. These jurisprudential developments are highly relevant to the AFSJ. The rules for taxation in transnational trade are at issue in such cases, as it is precisely in this field that states have entered into treaties to avoid the double taxation of entrepreneurial activity. For this reason, it makes sense to protect against double prosecution and/or punishment in different Member States, too.

18.3.2 The Identity of the Act or Facts (Idem) The question of what should be considered idem (same act/facts) for the purposes of the application of the ne bis in idem principle was long believed to be the most important and most difficult question that the principle raises. As will be explained, the issue has by and large been solved in CJEU case law. Idem has been conceived as a continuum, which ranges from more objective, historical facts to the legal qualification of those facts. The case law of the CJEU requires, 23

Garlsson (n 17) para 59.

24

Di Puma (n 17) paras 44–45.

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inasmuch as possible, an objective, historical approach to achieve the highest possible degree of legal certainty. Absent any common definition of what is ‘legal’ or ‘juridical’, it may be assumed that any consideration that is not of an objectively factual nature ties in, one way or another, with the ‘legal qualification’ of the act or facts.25 Two main categories of ‘juridical’ interpretations of idem can be distinguished in this regard: (1) those that reach a finding of idem where a second prosecution is allowed under a different legal heading or with respect to a different protected legal interest (German Schutznorm), and (2) approaches in which factual conduct is divided up between different legal or jurisdictional spheres. Under the former approach, a single act that falls into two or more different legal categories is regarded as a separate act under each category (eg manslaughter and terrorist act). Under the latter approach, a single act which is punishable by law in more than one state or in more than one legal sphere (eg criminal law and tax law) is regarded as a separate act in each of those states, or in each of those legal spheres. CJEU case law on Article 54 CISA has been seminal in the development of the interpretation of the idem component of the principle by other European courts. In Van Esbroeck, the CJEU faced the question of idem for the first time.26 The Advocate General argued that the very wording of Article 54 CISA justified an interpretation of idem on the (factual) basis of the historical acts alone: ‘If, instead of the acts alone, account were taken of the offences or of the rights protected by the prohibition of the said acts, the ne bis in idem principle would never function at international level.’27 Following the opinion of the Advocate General, the CJEU held that that ‘the wording of Article 54 of the CISA, “the same acts”, shows that that provision refers only to the nature of the acts in dispute and not to their legal classification’.28 According to the CJEU, it follows that ‘the possibility of divergent legal classifications of the same acts in two different Contracting States is no obstacle to the application of Article 54 of the CISA.’29 Furthermore, ‘the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another’.30 The Court concluded that ‘the only relevant criterion for the application of Article 54 of the CISA is the identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together  … in time, in space and by their subject-matter’.31 The CJEU therefore held that the import and export of illegal substances should in principle be seen as a set of facts which are ‘inextricably linked together’ in an area without internal borders,

25 26 27 28

B van Bockel, The Ne Bis In Idem Principle in EU Law (Kluwer Law International 2010) 45. Case C-436/04 Van Esbroeck EU:C:2006:165. Case C-436/04 Van Esbroeck EU:C:2005:630, Opinion of AG Ruiz-Jarabo Colomer, para 47. 29 30 31 Van Esbroeck (n 26) para 27. ibid para 31. ibid para 32. ibid paras 36–38.

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as is the case with the EU. Since then, several other decisions have confirmed and refined this approach. In the case of Van Straaten,32 a Dutch criminal court had acquitted the defendant (for lack of evidence because certain items produced were deemed inadmissible) of the charge of importing into the Netherlands approximately 5,500 grams of heroin from Italy in March 1983. He was, however, found guilty of (amongst other things) having had approximately 1,000 grams of heroin at his disposal during or around the period 27–30 March 1983 and served twenty months in prison. On 22 November 1999, the district court in Milan sentenced Mr Van Straaten in absentia to ten years imprisonment and a fine of 50 million Italian lira for repeatedly exporting approximately five kilograms of heroin from Italy into the Netherlands on or around 27 March 1983. In its judgment in Van Straaten the CJEU referred to relevant considerations in Van Esbroeck. Recalling that ‘the wording of Article 54 of the CISA, “the same acts”, shows that that provision refers only to the nature of the acts in dispute and not to their legal classification’, it confirmed the nature of Article 54 CISA as a fundamental right, its purpose within the context of the Schengen acquis and the central question of whether a situation constitutes a set of facts inextricably linked together.33 The CJEU accordingly held that in the case of narcotic drugs, the quantities need not be identical in order to establish identity of facts. As regards the accomplices, the CJEU applied the same reasoning and held that they need not be the same either. In Kraaijenbrink,34 the CJEU was first asked to provide guidance on the extent to which the intentions of the subject are relevant to a finding of idem. Following the opinion of the Advocate General, the CJEU reiterated that (1) the ‘same acts’ within the meaning of Article 54 CISA must be understood as a set of concrete circumstances inextricably linked together, and held that this inextricable link does not depend solely on the intentions of the defendant; and (2) the same criminal intention ‘does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of “same acts” within the meaning of Article 54 of the CISA’.35 The historical facts may provide an objective link between a given set of circumstances, and the intentions of the subject a subjective link. However, a subjective link between a set of concrete circumstances is alone insufficient for a finding of idem. CJEU case law on Article 54 CISA has had a decisive influence on the development of ECtHR case law. Prior to the Grand Chamber’s judgment in Zolotukhin, ECtHR case law on the interpretation of the same offence per Article 4 of ECHR Protocol 7 was riddled with ambiguities and unanswered questions. Several

32 34

Case C-150/05 Van Straaten EU:C:2006:614. Case C-367/05 Kraaijenbrink EU:C:2007:444.

33 35

ibid para 41. ibid para 29.

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different approaches to the interpretation of the notion of idem could be found within it. After the initial, incompatible judgments in Gradinger and Oliveira, the ECtHR took an autonomous approach to the interpretation of the same offence in Franz Fischer and several subsequent cases by considering whether two or more offences shared the same essential elements.36 This approach weakened the protection offered by the ne bis in idem principle contained in Article 4 of ECHR Protocol 7 and increased legal uncertainty.37 In particular, it was far from clear from the case law of the Court how the words ‘the same essential elements’ should be interpreted and applied. In Zolotukhin, the Grand Chamber expressly denounced the earlier case law on this point, considering that ‘the existence of a variety of approaches to ascertain whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right’.38 Following the approach to Article 54 CISA taken by, for example, the CJEU, the Grand Chamber embraced a broad, objective approach to the interpretation of the idem element. It held that ‘Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same’.39 The case concerned a Russian national who had displayed disorderly behaviour towards several public officials. He was placed in detention for three days for the administrative offence of ‘minor disorderly acts’. Shortly afterwards, he was prosecuted for the criminal offences of ‘disorderly acts’, ‘use of violence against a public official’ and ‘insulting a public official’ on the basis of substantially the same facts. He lodged a complaint with the ECtHR that was declared (partly) admissible, in response to which a chamber of the Court found a violation of Article 4 of ECHR Protocol 7. At the request of the Russian government, the case was referred to the Grand Chamber for review. In its judgment, the Grand Chamber held that ‘the use of the word “offence” in the text of Article 4 of Protocol No. 7 cannot justify adhering to a more restrictive approach. [The Court] reiterates that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory’.40 The Court went on to note that the approach focusing on the legal characterisation of the two offences was too restrictive on individual rights. If the Court limited itself to finding that the person was prosecuted for offences having a different legal classification,

36

37

38

Gradinger v Austria App no 15963/90 (ECtHR, 23 October 1995); Franz Fischer v Austria App no 37950/97 (ECtHR, 29 May 2001). See S Trechsel Human Rights in Criminal Proceedings (OUP 2005) 394. See also Law Commission, Double Jeopardy and Prosecution Appeals (Law Com No 267, 2001) 29–32; van Bockel (n 25) 191–201. 39 40 Zolotukhin v Russia (n 6) para 78. ibid para 82 (emphasis added). ibid para 80.

Interpretation and Application of Ne Bis In Idem

so it argued, it would risk undermining the guarantee enshrined in Article 4 of ECHR Protocol 7 rather than rendering it practical and effective, as required by the ECHR. Accordingly, the Court took the view that ‘Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same’.41 The importance of this approach, adopted both by the CJEU and subsequently by the ECtHR, lies above all in the stronger protection that an ‘objective’ approach – one based on the historical rather than the legal act or facts – offers for the individual and the added legal certainty that results. That said, the facts underlying the prosecution of a defendant inevitably derive their significance from the constitutive elements of the relevant offence as it is codified in law. The judgment could therefore be seen as requiring the highest possible degree of objectivity in assessing the underlying facts of the case. An element of subjectivity is inherent in any legal exercise, but the case law of the CJEU requires it to be minimised for the purposes of the ne bis in idem principle. The clear and convincing case law of the CJEU concerning the idem element in Article 54 CISA has therefore had a decisive and fundamental impact on the development of the interpretation of the ne bis in idem principle. Because of its adoption by the ECtHR in Zolotukhin, its influence is now felt in the legal systems of all the member states of the Council of Europe that have ratified the Seventh Protocol to the ECHR.

18.4 The Scope of Application of the Ne Bis In Idem Principle There are four aspects to the scope of application of the ne bis in idem principle: objective (typically national or international), subjective, temporal and material. As for the objective or territorial scope of application of the principle, the main limitation is international non-application. A high degree of mutual trust is needed for states to recognise the negative enforcement consequences of foreign judicial decisions. Such trust can (as yet) only be achieved in the context of close cooperation in criminal matters, like that found in the EU. Within the EU, the objective scope of application of the principle is determined by Article 51 of the Charter. The Court has recently shed more light on the meaning of that provision.42 The subjective scope of application of the ne bis in idem principle is quite straightforward, in both ECtHR and CJEU case law. Only someone who has actually been the subject of an earlier prosecution (and who has been finally acquitted or convicted, or has had their trial definitively disposed of in some fashion) can rely on ne bis in idem protection. In some legal systems, undertakings can be

41

ibid paras 82, 83.

42

Chapter 1 discusses this development.

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prosecuted under criminal law, and the criminal liability of the legal entity is normally regarded as distinct from that of its executives or employees for the application of the ne bis in idem principle. New questions will arise, such as whether legal entities can rely on ne bis in idem protection under Article 54 CISA in situations outside the scope of Article 4 of ECHR Protocol 7 and Article 50 of the Charter. Although this may not be what the drafters of the provision intended, finding a good reason why a legal entity should not be able to rely on Article 54 CISA may prove difficult. In national systems of law where the ne bis in idem rule has existed for centuries, the temporal aspect of the principle’s scope rarely raises problems. By contrast, the ECHR and the CISA entered into force fairly recently. For the CISA, the CJEU held in its Van Esbroeck judgment that Article 54 CISA would apply ratione temporis if the first prosecution was brought prior to the CISA entering into force, and the second after its entry into force, in that Member State.43 The ECtHR adopted essentially the same approach in its aforementioned Gradinger judgment, where it held that Article 4 of ECHR Protocol 7 applies if the second proceedings reached their conclusion after the entry into force of Article 4 of ECHR Protocol 7.44 A minor difference may be that the CJEU’s Van Esbroeck judgment apparently makes its determination based on the moment at which the second proceedings were initiated, whereas in Gradinger the ECtHR held that Article 4 of ECHR Protocol 7 applies if the second proceedings reached their conclusion after the date of entry into force of that provision. The material scope of application of the principle raises the most questions. The ECtHR has strengthened ne bis in idem protection through its case law by extending its autonomous interpretation of the notion of ‘criminal charge’ within the meaning of Article 6 ECHR (the ‘Engel criteria’) to its case law on the ne bis in idem rule in Article 4 ECHR Protocol 7. A previous unappealable decision under administrative law does not pre-empt subsequent criminal prosecution because, in most legal systems, the finality of a decision under administrative law does not necessarily constitute finality for criminal law purposes, and vice versa.45 A and B v Norway does not solve each and every ne bis in idem problem that arises out of the interaction between criminal and administrative law. Further measures at national level, such as legislative efforts aimed at the coordination and concentration of proceedings (or the removal of punitive elements from some aspects of administrative law) are still needed. Although some would argue that requiring such far-reaching adjustments to the rules of criminal and administrative

43 44 45

Van Esbroeck (n 26); see also Case C-297/07 Bourquain EU:C:2008:708. Gradinger v Austria (n 36). Unless a specific rule like una via regulates the relationship between the two. This should not be confused with ne bis in idem, however.

Interpretation and Application of Ne Bis In Idem

procedure lies outside the Strasbourg Court’s bailiwick, it should not be forgotten that what is ultimately at stake here is the realisation of a fundamental right at European level. Where this involves a degree of fine-tuning, some overreach is often necessary in the interest of coherence of interpretation and application. Another observation in this regard is that many jurisdictions have, over time, witnessed the proliferation of administrative law, often without thorough consideration of its proper relationship or coordination with criminal law. The case law of the ECtHR provides several examples of situations in which this resulted in areas of fortuitous overlap of administrative and criminal procedures and sanctions for similar acts or facts. For many of the same reasons as those for which the ne bis in idem principle exists, such overlap may be harmful if it is not sufficiently regulated. The problem of the proper coordination of administrative and criminal law is neither a problem caused by the application of the ne bis in idem principle nor one that can readily be solved through its application or interpretation.

18.5 The Enforcement Requirement from Article 54 CISA Of the ne bis in idem provisions in force at European level, only Article 54 CISA establishes that a penalty must have ‘been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party’. Article 4 of ECHR Protocol 7 and Article 50 of the Charter do not require the penalty to have been enforced. In its case law the CJEU interprets the enforcement condition very broadly as including out-of-court settlements and suspended sentences, in keeping with the principle of mutual recognition between the Member States and Article 54 CISA’s aim of promoting free movement. In the seminal Gözütok and Brügge judgment,46 the CJEU held that if the conditions of an out-of-court settlement were met, this would be considered a ‘penalty which has been enforced’ for the purposes of Article 54 CISA. In Kretzinger,47 the Court was faced with the question (among others) of whether a suspended custodial sentence must be treated as a penalty that has been enforced or is in the process of being enforced. The Court found that it would be ‘inconsistent, on the one hand, to regard any deprivation of liberty actually suffered as enforcement for the purposes of Article 54 of the CISA and, on the other hand, to rule out the possibility of suspended sentences, which are normally passed for less serious offences, satisfying the enforcement condition in that article, thus allowing further prosecutions’.48

46 47

Joined Cases C-187/01 and C-385/01 Gözütok and Brugge EU:C:2002:516. 48 Case C-288/05 Kretzinger EU:C:2007:441. ibid para 43.

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The CJEU judgment in Bourquain provides a clear illustration of why abolishing the enforcement requirement could prove problematic.49 Mr Bourquain, a German national, served in the French Foreign Legion in North Africa around 1960. During an attempt to desert, he shot dead a fellow legionnaire, also a German national. Mr Bourquain subsequently escaped to the German Democratic Republic and was sentenced to death in absentia by the French Permanent Military Court Zone Est Constantinoise for the murder of his comrade. After the reunification of Germany, Mr Bourquain was prosecuted for the same murder, this time by the German authorities. In his defence, Mr Bourquain relied (amongst other things) on his previous 1961 conviction in France. The German court contacted the French authorities and the public prosecutor of the Paris tribunal aux armées confirmed that the criminal conviction had acquired the force of res iudicata. The prosecutor informed the German court that the sentence could no longer be executed in France, for several reasons (including the rather remarkable fact that a general pardon had since been issued by the French Republic for all crimes committed in Algeria during that time). The Regensburg Landesgericht then referred several questions to the CJEU for a preliminary ruling. Although the CISA was never in force at all in Algerian territory, where Mr Bourquain was sentenced to death, nor in France at the time of the initial sentence by a competent authority of that state, the CJEU held that Article 54 CISA applied ratione temporis to criminal proceedings such as those at issue because the CISA had entered into force in both Germany and France by the time the second proceedings were brought against Mr Bourquain. For the CJEU, it was sufficient that the penalty could no longer be enforced, regardless of the fact that the penalty probably could never have been executed in the first place as a matter of French law. Little or nothing is known of the reasons (if there are any) why Article 4 of ECHR Protocol 7 and Article 50 of the Charter lay down no requirements regarding the previous sentence’s enforcement. This is somewhat surprising, considering the obstacles that often impede states from enforcing penalties. Armed conflict ravaged many parts of Europe during the twentieth century, leading to many situations –as in Bourquain – in which the surrender or extradition of a subject could not be carried out, or where foreign states refused to enforce sentences. Under those circumstances, it would be reasonable to allow for a second prosecution (if, for example, the sentence had been handed down but could not be enforced because the subject had absconded). Although there are many instruments now in place, like the European arrest warrant, which reduce the likelihood of a subject successfully escaping trial or punishment by crossing a border, they are relatively recent developments. Impunity is, and always has been, a general problem in

49

Bourquain (n 44).

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criminal law. The problem is certainly mitigated, but by no means eliminated, by EU criminal law instruments. For that reason, such developments in EU criminal law do not yet justify the abolition of a fundamental requirement of the ne bis in idem rule. The CJEU acknowledged this in its judgment in Zoran Spasic.50 The case concerned a Serbian national who, at the time of the reference to the CJEU for a preliminary ruling, was being prosecuted in Germany for fraud committed in Italy against a German national. He had already been convicted for this offence and sentenced to one year of imprisonment and a fine in Italy. At the time of the German trial, the Italian conviction had become final and enforceable. However, Mr Spasic had only paid the fine. He had not served his prison sentence. The German judge therefore submitted two preliminary questions to the CJEU. First, was the enforcement clause of Article 54 CISA compatible with Article 50 of the Charter? Second, did the execution of only one of two independent components of the sentence satisfy this condition? In answering the first question, the CJEU qualified the enforcement requirement as a ‘limitation’ of the right enshrined in Article 50 of the Charter. The Court held that the limitation was indeed proportionate for several reasons. The first was that the enforcement condition of Article 54 CISA does not call into question the ‘essence’ of ne bis in idem as per Article 50 of the Charter.51 Secondly, the Court ruled that the condition pursues an objective of general interest within the AFSJ – namely, the prevention of impunity. Finally, the Court judged the enforcement requirement to be necessary because the instruments of mutual recognition (the European arrest warrant and the framework decision on the mutual recognition of custodial sentences for their cross-border enforcement) are not ‘equally effective’ in preventing impunity.

18.6 Concluding Remarks The ne bis in idem principle in the AFSJ has developed spectacularly over the past two decades. The case law of the CJEU on Article 54 CISA has greatly contributed to these developments, in particular where the interpretation of the idem element is concerned. The Van Esbroeck–Zolotukhin line of case law represents a prime example of fruitful substantive judicial dialogue (or, perhaps more accurately, judicial dialectics) between the two European courts. This interaction has led to clarity, legal certainty and doctrinal coherence on one of the most difficult puzzles traditionally found in criminal law: the question of when facts can be

50

Case C-129/14 PPU Spasic EU:C:2014:586.

51

ibid para 58.

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deemed the same. This achievement should not be underestimated, for in some jurisdictions – such as my own – judges have been grappling with that very issue for decades, and in other cases for centuries. It must be admitted, however, that although – as I have argued here and elsewhere – both courts should be excused and neither has erred in any fundamental way, the A and B v Norway and Menci, Garlsson and Di Puma line of case law raises concern. I submit that the issue is fundamentally not ne bis in idem, but rather the relationship between criminal and administrative law resulting from the shift towards the ‘administrative state’. This shift has been accompanied by the emergence and proliferation of a punitive branch of administrative law, and important aspects of its relation to traditional criminal law remain unclear. Decriminalisation by bringing certain offences under the umbrella of administrative or tax law is not necessarily bad. On the contrary, criminal law is a broad sword, a forceful instrument whose implications for its subjects are so deep that many will benefit if their offences are brought within the purview of administrative authorities. The problem is that offences now subject to administrative sanctions still remain punishable under criminal law. No fundamental debate on the proper relationship between administrative and criminal law in this regard has taken place. The developments in the case law on the ne bis in idem principle suggest that we will not find any sufficiently decisive answer to the question of how the ne bis in idem principle should be applied in the context of the relationship between criminal, administrative and tax law until we have a sufficiently clear notion of the precise nature of that relationship. Such clarification seems better left not to the judiciary, but to a process of wider political and societal deliberation –for which the time is by now ripe.

PART V Cross-Cutting Issues of Fundamental Rights in the AFSJ

19

Private Life and Data Protection in the Area of Freedom, Security and Justice EVELIEN BROUWER

19.1 Data Processing within the Area of Freedom, Security and Justice Within the Area of Freedom, Security and Justice (AFSJ), various mechanisms have been set up to collect, store and exchange personal data for the purposes of law enforcement and border and immigration control. These instruments provide for the exchange of information between judicial and law enforcement authorities (Europol, Eurojust, Prüm Decision), transfer of data to third states (bilateral PNR agreements, Terrorist Finance Tracking Programme), and large-scale databases such as the Schengen Information System, Eurodac, and the Visa Information System. Furthermore, private actors have been obliged to submit personal data to national law enforcement authorities or EU agencies (Data Retention Directive, PNR Directive, API Directive). Many of these measures were adopted in response to terrorism attacks, such as 9/11 in the United States in 2001 and those in Barcelona in 2004, London in 2005, Paris in 2015 and Brussels in 2016. In addition, the arrival of an unprecedented number of asylum seekers in 2015–16 has triggered the development of new data systems for external border control. Both the efficiency of these measures and the protection of fundamental rights depend on mutual trust among the states and actors involved. This involves trust not only with respect to the quality and legitimacy of the data itself, but also regarding data and privacy protection.1 Within the legal framework of the EU, institutions, agencies and Member States are required to protect the fundamental right to privacy and data protection, as established by Article 8 ECHR and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (CFR). Besides the data protection standards set in the particular instruments in question, general rules are laid down in the General Data Protection Regulation and the directive on data protection within the field of law enforcement, both of 2016.

1

Celine Cocq and Francesca Galli, ‘Building Trust and More: The Importance of Police Cooperation Networks in the European Union’ in Saskia Hufnagel and Carole McCartney (eds), Trust in International Police and Justice Cooperation (Hart 2017).

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The purpose of this chapter is to describe the data processing measures that have a bearing on the AFSJ, and to examine their impact on privacy and data protection in the light of the criteria established by the ECtHR and the CJEU in their case law on Article 8 ECHR and Articles 7 and 8 CFR.2 The limited scope of this contribution does not permit a complete analysis of all the material and procedural standards deriving from the right to privacy and data protection.3 As other commentators have shown, data protection in the field of the AFSJ, especially in relation to law enforcement and police cooperation, is highly complex, not only because of the diversity of the measures adopted but also because the relationship between the applicable rules is often unclear.4 After first delineating the contours of the right to privacy and data protection in EU law, the chapter will provide an overview of current data processing tools within the AFSJ.5 Focusing on the use of centralised databases and biometrics, the involvement of third parties and the principle of interoperability, I will describe the applicable privacy and data protection rules, including purpose limitation, the strict necessity test, the prohibition of automated decision-making, the right to effective judicial protection, and independent supervision. Given the complexity of these rules, I will argue that a large number of legal rules does not necessarily result in a high level of protection.

19.2 Applicable Legal Standards 19.2.1 Article 8 ECHR and Data Protection in the Context of the Council of Europe In various judgments, the ECtHR has made it clear that the collection and storage of personal information may infringe the right to private life protected under Article 8 ECHR, irrespective of whether the information gathered is subsequently used.6

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On the implications of the CJEU case law, see Irena Nesterova, ‘Crisis of Privacy and Sacrifice of Personal Data in the Name of National Security: The CJEU Rulings Strengthening EU Data Protection Standards’, European Society of International Law (ESIL) Conference Paper 11/2016. For an extensive and useful analysis, see Maria Tzanou, The Fundamental Right to Data Protection: Normative Value in the Context of Counter-Terrorism Surveillance (Hart 2017); Tzanou, Handbook on European Data Protection Law: 2018 Edition (European Union Agency for Fundamental Rights and Council of Europe 2018). Cristina Blasi Casagran, Global Data Protection in the Field of Law Enforcement: An EU Perspective (Routledge 2017). In this chapter, ‘private life’ and ‘privacy’ are used interchangeably for the same right; however, the ECHR and the Charter refer consistently to the right to ‘private life’. Amann v Switzerland App no 27798/95 (ECtHR, 16 February 2000). On relevant ECtHR case law, see Franziska Boehm Information Sharing and Data Protection in the Area of Freedom, Security and Justice: Towards Harmonised Data Protection Principles for Information Exchange at EULevel, (Springer 2012) 25ff.

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Article 8(2) ECHR requires that any limitation on the right to private life must be in accordance with the law and necessitated by one of the goals specified in Article 8(2). In its judgments, the ECtHR has developed further standards with respect to the scope and meaning of Article 8 when applied to data processing and the use of personal information. For instance, it has underlined the need for a transparent and foreseeable legal basis, the necessity and proportionality of the measures contemplated, and the protection of the rights of data subjects, including the right to access their data and have them corrected.7 The ECtHR has furthermore reaffirmed the importance of effective, independent and impartial supervision of data processing activities, and of the availability of an effective remedy enshrined in Article 13 ECHR.8 In addition to being based on Article 8 ECHR, data protection rules derive from the Data Protection Convention of 1981 and Recommendation R(87)15 on the use of personal information in the police sector, both adopted by the Council of Europe.9 These instruments, which lay down basic principles such as purpose limitation and purpose specification, individual rights to access data and have them corrected and deleted, and supervision by an independent authority, form the basis for data protection laws within the EU.

19.2.2 Private Life and Data Protection in EU Law By including the right to data protection in the CFR, the EU legislator affirmed its status as an independent fundamental right to be protected within the scope of EU law.10 Alongside the right to private and family life in Article 7 CFR, Article 8 guarantees that everyone is entitled to the protection of personal data concerning them. Specific guarantees are included in Article 8(2). They include, first, the principle of fairness and purpose specification and, second, the existence of a legitimate basis either in law or by consent of the data subject. The third guarantee concerns access to and correction of the data. According to Article 8(3) CFR, compliance with these obligations must be amenable to control by an independent authority. Pursuant to Article 52(1) CFR, any limitation on the right to privacy and data protection established by Articles 7 and 8 CFR must be determined by law,

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Huvig and Kruslin v France, App no 11801/85 (ECtHR 24 April 1990); Klass and Others v Germany (6 September 1978) Series A no 28; Segerstedt-Wiberg v Sweden App no 62332/00 (ECtHR, 6 June 2006); Gaskin v United Kingdom App no 10454/83 (ECtHR, 7 July 1989). See Segerstedt-Wiberg (n 7) paras 116–22. Data Protection Convention, ETS 108 (28 January 1981, revised 2018); Recommendation R(87)15 (17 September 1987), www.coe.int/en/web/data-protection. Charter of Fundamental Rights of the European Union [2000] OJ C364/1. The Charter became binding upon the entry into force of the Lisbon Treaty in 2009.

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respect the essence of those rights and freedoms and conform to the principle of proportionality. Before the incorporation of data protection as a fundamental right in the CFR in 2000, general rules on data protection were provided in Directive 95/46.11 These rules applied to data processing in the private and public sectors, except where public and state security, defence or criminal law were concerned.12 These exceptions resulted in the contested bestowal of wide powers on national authorities to access to personal information, as in Article 15 of Directive 2002/58 on privacy and electronic communications.13 It was only in 2008 that a framework decision was adopted to regulate the processing of personal data in the field of police and judicial cooperation.14 The General Data Protection Regulation (GDPR) and the Law Enforcement Directive (LED), both applicable from 24 May 2018, represented the next generation of data protection law.15 Responding to modern data processing technology, these laws introduced new principles of data protection, including data minimisation, data portability and the right to be forgotten.16 Furthermore, the EU legislator gave an increased role to national supervisory authorities and the European Data Protection Supervisor (EDPS, replacing the former Article 29 Working Party). At the same time, the GDPR and the LED widened the data processing powers of public and private actors, for example by adding exceptions to the principle of purpose limitation and the prohibition of automated decision-making. Below,

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Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31. Processing in the course of ‘a purely personal or household activity’ was also exempted; see ibid art 3(2). Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L201/37. The scope of Article 15 was limited by the interpretation of the CJEU in the famous Case C-203/15Tele2 Sverige AB EU:C:2016:970 (21 December 2016). Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters [2008] OJ L350/60. Before that, the field of law enforcement was nonetheless covered by Article 8 ECHR, the 1981 Data Protection Convention and Recommendation R(87)15. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L119/1; Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA[2016] OJ L119/89. Respectively arts 5(1)(c), 20, 17.

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we will see that many of the data processing instruments within the AFSJ are of a mixed nature and used for immigration as well as law enforcement purposes, which means that both the GDPR and the LED may apply. Regulation 2018/1725 applies to data processing by EU institutions and agencies, including those acting within the AFSJ, such as Europol, Eurojust and the European Border and Coast Guard Agency.17 Whereas the preamble of the former Directive 95/46 referred directly to Article 8 ECHR, the GDPR simply mentions the right of data protection and other fundamental rights as protected in the CFR.18 It is clear from Articles 52(3) and 53 CFR that Article 8 ECHR remains relevant for data processing within the AFSJ.19 Furthermore, Recital (46) of the Directive 2016/680 provides that any restriction of individual rights must conform with both the Charter and the ECHR. In its case law, both before and after the CFR became binding, the CJEU explicitly refers to Article 8 ECHR and to ECtHR judgments.20 In April 2019, with a view to promoting data protection standards at a global level and facilitating data flow between Union and non-Union parties to the Data Protection Convention, the EU Council adopted a decision authorising EU Member States to ratify the 2018 protocol modernising the Data Protection Convention ‘insofar as its provisions fall within the exclusive competence of the Union’.21 And, as we will see below, the Prüm Decision on the exchange of personal data between police and judicial authorities refers to Recommendation R(87)15.

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Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) 45/2001 and Decision 1247/2002/EC [2018] OJ L295/39. See Directive 95/46 (n 11) recitals (2), (10); GDPR (n 15) recitals (1), (4). Article 52(3) states that the rights in Charter that correspond to rights in the ECHR have the same scope and meaning as in the ECHR, while the Charter may provide more extensive protection. Article 53 CFR emphasises that the level protection of the CFR is not to fall below the standards of the ECHR. These standards include explanations of the ECHR in ECtHR case law. See Joined Cases C-465/00, C-138/01 and C-139/01 Rechnungshof v Österreichischer Rundfunk and Others EU:C:2003:294 [2003] ECR I-4989, paras 71–83; Case C-293/12 Digital Rights Ireland EU:C:2014:238, paras 35 and 55, referring to S and Marper v UK and MK v France. Council Decision (EU) 2019/682 of 9 April 2019 authorising Member States to ratify, in the interest of the European Union, the Protocol amending the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data ST/10923/2018/ INIT [2019] OJ L115/7, recital (6).

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19.3 19.3.1

Information Exchange in the Field of Law Enforcement and Judicial Cooperation22 Europol and Eurojust

Europol was established in 2010 to promote cooperation and coordination among national police organisations. Referred to in Recital (12) of the Europol Regulation23 as ‘a hub for information exchange in the Union’, Europol enables the exchange of information between EU police organisations for the purposes of preventing and combating organised crime, terrorism and other forms of serious crime. The Europol Regulation allows for the collection, storage, processing, analysis and exchange of data, including criminal intelligence relating to crime or criminal activities ‘obtained with a view to establishing whether concrete criminal acts have been committed or may be committed in the future’. The task of Europol thus extends to crime prevention, which implies the proactive analysis of data, including profiling. The Europol Regulation provides for the sharing of information between Europol and national organisations, other EU agencies, third countries and third parties. To improve coordination and make information sharing more effective, a European Counter Terrorism Centre was set up in January 2016. For the purposes of coordinating and stimulating cooperation between judicial organisations in the EU, Council Decision 2002/187 established Eurojust.24 The powers of Eurojust were expanded by Council Decision 2009/426 to allow the exchange of personal information with other EU agencies and third states and more extensive processing of personal information, including DNA.25 Both Europol and Eurojust work with Joint Investigation Teams (JITs), creating synergies between members of national law enforcement and judicial teams in cross-border crime matters.26

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For an extensive analysis, see Anna Fiodorova Information Exchange and EU Law Enforcement (Routledge 2018). Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/ JHA [2016] OJ L135/53. Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [2002] OJ L63/1. Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ L138/14. The meaning of JITs for Europol is explained at www.europol.europa.eu/activities-services/ joint-investigation-teams and for Eurojust at www.eurojust.europa.eu/practitioners/jits/pages/ historical-background.aspx.

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The regulations creating Europol and Eurojust each contain their own set of data protection rules, including the right to access data and have them corrected or deleted, the appointment of data protection officers, and general monitoring by the European Data Protection Supervisor.

19.3.2 Prüm Decision The Prüm Treaty was adopted in 2005 by seven EU Member States (Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain). It provided for the exchange of information during major events with cross-border dimensions, particularly sporting events, ‘if any final convictions or other circumstances give reason to believe that the data subjects will commit criminal offences at the event or pose a threat to public order and security, in so far as the supply of such data is permitted under the supplying Contracting Party’s national law’.27 This intergovernmental treaty was incorporated into the legal framework of the EU through Decision 2008/615 (Prüm Decision),28 which allows Member States to search for and automatically compare DNA profiles and fingerprint data via their national contact points.29 There is very little information readily available on the practices, results and effectiveness of cooperation under the Prüm Decision.30 One would have expected the data processing measures in the Prüm Decision to come within the scope of the aforementioned LED. However, Recital (94) LED explicitly states that provisions in existing legislation on data processing in the field of judicial and police cooperation, including the Prüm Decision, will ‘remain unaffected’ by the LED. The Prüm Decision includes its own data protection rules, which cover such topics as access to and correction of data and the length of time during which it is held. For the most part, these provisions are vague and often refer to applicable standards at national level. Pursuant to Article 25 of the Prüm Decision, however, the level of data protection should be ‘at least’ equal to protection offered by the Data Protection Convention and Recommendation R(87)15.

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For English version, see Council of the European Union, doc 16382/06 (6 December 2006). Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime [2008] OJ L210/1. On the incorporation of the Prüm Treaty into EU law, see Elspeth Guild Merging Security from the TwoLevel Game: Inserting the Treaty of Prüm into EU Law? (CEPS Policy Brief 124, March 2007); Thierry Balzacq and others, ‘The Treaty of Prüm and EC Treaty: Two Competing Models for EU Internal Security’ in T Balzacq and S Carrera (eds), Security Versus Freedom? A Challenge for Europe’s Future (Ashgate 2006). For more on the Prüm Treaty, the roles of Europol and Eurojust, and cross-border cooperation, see Ángeles Gutiérrez Zarza (ed) Exchange of Information and Data Protection in Cross-Border Criminal Proceedings in Europe (Springer 2015). Didier Bigo and others, The EU and the 2016 Terrorist Attacks in Brussels: Better Instead of More Information Sharing (CEPS Commentary, 6 April 2016).

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Moreover, although not explicitly mentioned in the decision itself, Member States implementing the Prüm Decision are bound by Article 8 ECHR and Articles 7 and 8 CFR (following its incorporation in EU law through the Treaty of Lisbon).

19.3.3 19.3.3.1

Involvement of Third Parties Transfer of Passenger Data by Air Carriers

In the EU, two legal instruments establish the obligation for air carriers to transmit information on their passengers to EU border guards and law enforcement authorities. First, Directive 2004/82/EC obliges air carriers to transfer advanced passenger information (API) to border officials for immigration law purposes.31 Second, Directive 2016/681 provides that air carriers must transfer passenger name record (PNR) data for prevention, detection, investigation, and prosecution of terrorist offences and serious crime.32 The primary goal of the API Directive is to combat illegal immigration and to improve border control. However, Article 6 of the directive allows Member States to use the transmitted API data for law enforcement purposes. API covers data from the machine-readable zone of the passport, including name, date of birth, passport number and nationality, while PNR data comprise details registered by airline companies and travel agencies when a passenger makes a reservation, such as the person’s name, seat number, itinerary, booking agent, credit card number, etc. PNR data are collected for reservation purposes and therefore may differ from one air travel company to another. The PNR Directive requires Member States to set up national Passenger Information Units (PIUs) for risk analysis purposes. The directive provides for Europol to have access to PNR data and allows the data to be transferred to third states under certain conditions. According to the directive, Member States have the option to apply the obligations the directive places on air carriers for their extra-EU flights also to their intra-EU flights.33 As regards data protection, Article 13 of the PNR Directive refers to the level of protection in Framework Decision 2008/977, which has since been replaced by the LED. According to Recital (15) of the PNR Directive, data processing activities of PIUs must abide by the ‘high standards’ set in the CFR, the Data Protection 31

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Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data [2004] OJ L261/24 (implementation deadline 5 September 2006). Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crimes [2016] OJ L119/132 (implementation deadline 25 May 2018). See the earlier ‘Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes’, COM (2007) 654 final (6 November 2007). David Lowe, ‘The European Union’s Passenger Name Record Data Directive 2016/681: Is It Fit for Purpose?’ (2017) 17 International Criminal Law Review 78.

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Convention and the ECHR. Furthermore, Recital (31) states that the transfer of data to third countries should be subject to ‘principles of necessity and proportionality and the high level of protection provided by the Charter and the ECHR’.34

19.3.3.2

Agreements with Third States

In addition to introducing the aforementioned rules relating to Europol, Eurojust, API and PNR, which allow personal data to be transferred to third countries, the EU has signed bilateral agreements with third states on data exchange and cooperation for law enforcement and border control purposes. Examples of such cooperation between the EU and third states are the exchange of passenger data with the USA and Australia and cooperation between the US government and Europol as part of the Terrorist Financing Tracking Programme (TFTP).35 During the negotiations preceding these agreements, various stakeholders, including the European Parliament, NGOs, and the EDPS, raised concerns over such matters as the level of data protection in the third state and the scope and accessibility of legal remedies for data subjects. In response and in light of a CJEU decision annulling the EU-US PNR agreement, the European Commission was forced to renegotiate a new agreement with the USA.36 This resulted in the adoption of the Umbrella Agreement in December 2016, which entered into force in February 2017.37 Commissioner Jourovâ described the agreement as a ‘common transatlantic privacy framework based on high standards with the USA’, supporting and facilitating ‘law enforcement cooperation by building trust and legal certainty for data transfers’.38 The Umbrella Agreement applies to various data transfer agreements between EU and USA (including TFTP). Prior to its conclusion, the EU negotiators insisted on the adoption by the US Congress of the Judicial Redress Act, which ensures access to legal remedies for citizens of designated countries. However, such access is limited to civil law procedures and does not apply to criminal or administrative law

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On the background and content of the PNR Directive, see Susanna Villani, Some Further Reflections on the PNR Directive (EU) 2016/681 on PNR Data in the Light of the CJEU Opinion 1/15 of 26 July 2017’ [2019] 101 Revista de Derecho Político 899. For an analysis of these measures, see Didier Bigo and others, The EU Counter-Terrorism Policy Responses to the Attacks in Paris: Towards an EU Security and Liberty Agenda (CEPS-Policy Brief 81, February 2015). Joined Cases C-317/04 and C-318/04 EP v Council EU:C:2006:346 (annulment of Council Decision 2004/496/EC of 17 May 2004). Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection and prosecution of criminal offences [2016] OJ L336/3. Speech 17/826 (Washington DC, 31 March 2017). On EU-US cooperation, including the PNR agreements, see Dimitrios Anagnostakis EU-US Cooperation on Internal Security: Building a Transatlantic Regime (Routledge 2017).

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procedures in the USA. Furthermore, third-country nationals residing in the EU whose data is communicated under the Umbrella Agreement are not protected by the Judicial Redress Act. As will be discussed below, a draft agreement between the EU and Canada on the exchange of PNR data was declared invalid by the CJEU in 2017.39 On 16 July 2020, in the Schrems II judgment, the CJEU invalidated the Commission’s decision that was the legal basis of the EU-US Privacy Shield.40 This judgment followed the CJEU’s 2015 ruling in Schrems I, in which the Court invalidated the Commission’s adequacy decision underlying the EU-US safe harbour arrangement that was the predecessor of the EU-US Privacy Shield.41 Schrems I, Schrems II and Opinion 1/15 on the EU-Canada Agreement all have important implications for negotiating and defining the content of future EU agreements with third states

19.4 19.4.1

EU Large-Scale Databases and Interoperability Large-Scale Databases at EU Borders

The Schengen Information System (SIS), operational since 1995, is used by twenty-six states, including some outside the EU. A second-generation SIS was established with the adoption of new rules in Decision 2007/533 on the use of the SIS for law enforcement purposes and Regulation 1987/2006 on SIS alerts regarding third-country nationals for the purpose of refusing entry.42 Currently, SIS II covers the following categories of persons: persons wanted for arrest for extradition purposes (on the basis of the EAW Framework Decision 2002/58443), third-country nationals to be refused entry to the Schengen territory; missing persons; persons who are wanted by judicial authorities during the course of a prosecution (for example, as a witness); and persons reported for the purpose of discreet

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CJEU, Opinion 1/15 (26 July 2017), https://curia.europa.eu/jcms/upload/docs/application/ pdf/2017–07/cp170084en.pdf. Case C-311/18 Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems (Maximillian Schrems or Schrems II) EU:C:2020:559 (annulment of Commission Implementing Decision 2016/1250 of 12 July 2016). Case C-362/14 Maximillian Schrems v Data Protection Commissioner (Schrems I) EU:C:2015:650. Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) [2007] OJ L205/63; Regulation (EC) 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) [2006) OJ L381/4. 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1.

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surveillance or specific checks, following indications that a person ‘intends to commit or is committing a serious criminal offence’ or ‘where an overall assessment of a person’, particularly their prior offences, ‘gives reasons to suppose’ that they ‘will also commit serious offences in the future’.44 In practice, SIS II works on a hit-no hit basis, meaning that authorities, empowered by national legislation, are granted access to the SIS for a specific purpose, and only if the subject of the query is matched in the database will they be given access to the personal information reported in it. A new regulation (SIS III) on the use of the SIS for border controls was adopted in November 2018 to replace the aforementioned Regulation 1987/2006.45 In addition, Regulation 2018/1862 on the use of SIS in the field of police and judicial cooperation will replace Decision 2007/533.46 The effect of the two regulations will be to transform the structure of the SIS into a general investigation tool and add new categories of data to be stored. The utility of the SIS will be further enhanced by the ability to look for matches in SIS III on the basis of biometric data and the incorporation of the principle of interoperability, to be addressed below. Regulation 2018/1862 on the use of SIS for law enforcement allows for the use of DNA samples of missing persons and children. Eurodac is the first EU Automated Fingerprint Identification System (AFIS), operational since 15 January 2003.47 It includes the fingerprints of asylum seekers and third-country nationals who irregularly cross the external borders of Member States. The purpose of Eurodac is to facilitate the application of the so-called Dublin Regulation 343/2003 (Dublin II), which determines which state is

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Decision 2007/533/JHA (n 42) art 36. Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) 1987/2006 [2018] OJ L312/14. This regulation will apply only after the Commission has taken a decision on the starting date for SIS operations, which it must do by 28 December 2021 (art 66). Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU [2018] OJ L312/ 56. This regulation will also replace Regulation 1986/2006 on the use of the SIS for vehicle registration certificates. Regulation 2725/2000 (EC) of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1. The commencement of Eurodac’s operations was announced in Commission communication regarding the implementation of Council Regulation (EC) 2725/2000 ‘Eurodac’ [2003] OJ C5/2.

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responsible for an asylum application in the EU.48 Since 20 July 2015, Regulation 603/2013 has allowed access to Eurodac for law enforcement purposes in predetermined circumstances.49 Compared to the SIS and Eurodac, the Visa Information System (VIS) is currently the biggest large-scale database. Developed in accordance with Regulation 767/200850 and operational since 2011, the VIS facilitates (short-term) visa application procedures under the Visa Code51 or Regulation 810/2009 and identity checks at external borders in accordance with the Schengen Borders Code (Regulation 2016/399).52 The VIS contains data on every third-country national applying for a short-term visa, including visa refusals and annulments.53 The applicant’s data, including biometrics, can be stored for five years. Apart from facilitating the visa procedure, the VIS is used to prevent visa shopping, ID fraud and irregular immigration, facilitate the implementation of the Dublin system in determining the Member State responsible for examining asylum applications, and for the ‘prevention of threats to internal security’. National law enforcement authorities (‘designated authorities’) and Europol may obtain access to the VIS, under specific circumstances, for ‘the prevention, detection or investigation of terrorist offences and of other serious criminal offences’. This follows from Article

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Council Regulation (EC) 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1, based on Commission, ‘Proposal for a Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national’ COM (2001) 447 final (26 July 2001). The list of designated authorities with access to Eurodac for law enforcement purposes is highly diverse. See List of Designated Authorities which have Access to Data Recorded in the Central System of Eurodac pursuant to Article 27(2) of the Regulation (EU) No 603/2013, for the Purpose laid down in Article 1(1) of the same Regulation (European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (euLISA) April 2019), www.eulisa.europa.eu/Publications/Reports/2019%20Eurodac%20 updated%20list%20of%20authorities%20-%20asylum.pdf. Regulation (EC) 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas [2008] OJ L218/60. Regulation (EC) 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L243/1. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2016] OJ L77/1. Only nationals of countries appearing in the list annexed to Regulation 539/2001 are concerned. See Council Regulation (EC) 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [2001] OJ L81/1. The list has been amended several times since 2001.

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3(2) of Regulation 767/2008. Twenty-six states (within and outside the EU) currently have access to the VIS.54 In addition to these existing systems, the EU adopted laws for the establishment of three new large-scale databases between 2017 and 2019: the Entry-Exit System (EES); the European Travel Information and Authorisation System (ETIAS) and the EU Central Registration Index System on third-country nationals (ECRISTCN). The EES, expected to be operational in 2020, will include information on the entry and exit of each third-country national, not only for the purpose of preventing irregular overstay but also to protect internal security.55 The ETIAS will include records on all applications for authorisation to enter the EU by visa-exempt third-country nationals, which will be used for immigration control and law enforcement purposes, too.56 The ECRIS-TCN will store personal information on all third-country nationals (including EU citizens with dual nationality) with criminal convictions in one or more EU Member States.57 According to the Commission, the ECRIS-TCN is meant to supplement the existing and decentralised ECRIS on EU citizens, allowing Member States to exchange information on EU citizens’ previous convictions contained in national criminal record systems.58 Unlike the aforementioned ECRIS on EU citizens, the ECRIS-TCN is a centralised system containing biometrics; it will be used for other purposes as well, including decision-making in the field of immigration law. Furthermore, the ECRIS-TCN will be accessible by Europol, Eurojust and the European Public Prosecutor.

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See also euLISA, Technical Reports on the Functioning of VIS (May 2018). Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011 [2017] OJ L327/20. Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 [2018] OJ L236/1. Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 [2019] OJ L135/1. Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States [2009] OJ L93/23; Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA [2009] OJ L93/33.

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19.4.2

Interoperability of Databases

The use and impact of the aforementioned databases will fundamentally change after the entry into force of the regulations on interoperability adopted in May 2019.59 Interoperability under these regulations will allow national authorities and EU agencies to check and compare, for both immigration and law enforcement purposes, personal information stored in one or more of the aforementioned databases. Biometrics will be the principal means employed to achieve interoperability and to ascertain whether a person has been registered in one of the EU databases. Interoperability will transform the original compartmentalisation60 of the different data systems and allow national authorities and EU agencies to compare multiple databases.61 Moreover, the diversity of the data systems and actors involved and of the uses to which the data is put will make it increasingly difficult to determine the applicable data protection regime.62

19.5 Applying Data Protection Law 19.5.1 The Principle of Purpose Limitation As we have seen, many databases and instruments for the exchange of personal information have been developed within the EU in a relatively short period. Databases originally set up for administrative purposes, such as Eurodac, have been opened to law enforcement authorities, thereby broadening their original purpose. Other data systems, such as the VIS, were multipurpose from the outset,

59

60

61

62

Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa and amending Regulations (EC) 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA [2019] OJ L135/27; Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 [2019] OJ L135/85. See eg Niovi Vavoula, ‘Interoperability of European Centralised Databases: Another Nail in the Coffin of Third-Country Nationals’ Privacy?’ (Odysseus Network blog, 8 July 2019), https:// eumigrationlawblog.eu/interoperability-of-european-centralised-databases-another-nail-in-thecoffin-of-third-country-nationals-privacy/. Teresa Quintel, ‘Interoperability and Law Enforcement Access to Personal Data: Data Protection Rights of Third Country Nationals in the Light of the CJEU’s Case Law’ [2018] 2 Europarättslig tidskrift. Generally, this will happen unbeknown to the data subject. See Evelien Brouwer, ‘Large-Scale Databases and Interoperability in Migration and Border Policies: The Non-Discriminatory Approach of Data Protection’ (2020) 26 European Public Law 71.

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covering both border control and law enforcement.63 The multiple uses of a largescale database in the EU are further facilitated by the use of biometrics and the regulations on interoperability.64 These developments seem difficult to reconcile with one of the basic principles of data protection: purpose limitation. Purpose limitation not only ensures the transparency and legitimacy of data processing, it also aims to restrict (informational) powers, so that authorities have access only to the data they need to fulfil their public tasks or legal obligations. Hence, in the context of EU law, there is a close relationship not only between purpose limitation and the principle of proportionality but also between proportionality and necessity.65 In the new GDPR, purpose limitation is laid down in Article 5(1)(b). Article 6 GDPR specifies the grounds on which data processing can be considered lawful. Article 6(4) allows data processing for purposes other than the original purposes where the data processing is not based on the consent of the data subject or on a need foreseen in national or EU law. In these cases, Article 6(4) provides that the data processor must take additional circumstances into account to ensure that this supplementary data processing is necessary and proportionate and to ascertain whether it is compatible with the original purpose. These circumstances include, inter alia, the context in which the data were collected, any link between the original purpose and the additional purpose for which the data processing is intended, and the possible consequences for the data subject. Apart from this exception to purpose limitation, the relationship between the GDPR and the LED with regard to the scope of purpose limitation is complex.66 The processing of personal data by public authorities for law enforcement purposes is excluded from the scope of the GDPR according to Recital (19). This means that data processing by public authorities within the scope of the GDPR can be governed by specific data protection rules or the LED if the data will be used for law enforcement purposes as well. Vice versa, if law enforcement authorities falling within the scope of the LED use data for purposes within the scope of the GDPR, this data processing will be covered by the GDPR. In practice, considering the aforementioned multiple uses of personal data within the AFSJ, blurring the lines between immigration and law

63

64

65

66

EDPS, ‘EDPS Opinion on the Proposal for a European Travel Information and Authorisation System (ETIAS)’ (Opinion 3/17, 6 March 2017) para 51. Niovi Vavoula, Immigration and Privacy in the Law of the European Union – The Case of Databases (forthcoming). EDPS, ‘Assessing the Necessity of Measures that Limit the Fundamental Right to the Protection of Personal Data: A Toolkit’ (11 April 2017) 5. On the role of purpose limitation within the framework of the GDPR and the LED, see Catherine Jasserand, ‘Subsequent Use of GDPR Data for a Law Enforcement Purpose: The Forgotten Principle of Purpose Limitation?’ (2018) 4 European Data Protection Law Review 152.

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enforcement purposes, it will be difficult for data processors, data subjects and supervisory authorities to determine which law applies.

19.5.2 The Strict Necessity Test The CJEU has established important criteria for determining whether a violation of the right to privacy and data protection has occurred. It did so in Digital Rights Ireland in 2014, in Schrems I in 2015, and in its 2017 opinion on the PNR agreement between the EU and Canada, and again in 2020 in Schrems II.67 In its case law, building on the earlier case law of the ECtHR, the CJEU has set a high threshold, in the form of the ‘strictly necessary’ test, for justifying limitations on the right to data protection.68 According to this test, derogations and limitations in relation to the protection of personal data are allowed only inasmuch as they are strictly necessary.69 This criterion also applies to the interpretation of purpose limitation. When introducing new measures of data processing, the EU legislator must first assess their necessity and define a clear and limited purpose for the use of the personal information.70 In Digital Rights Ireland, one of the grounds on which the CJEU found the Data Retention Directive to be in violation of Articles 7, 8 and 52(1) CFR was the fact that implementing it would entail processing data on practically the entire European population, including persons without any link to a criminal investigation.71 According to the CJEU, the directive did not provide for prior review by a court or an independent body to examine whether access was strictly necessary, and there was a ‘general absence of limits’ in the directive on the authorities entitled to access the data and on subsequent use or abuse. Furthermore, the time limits provided in the directive went beyond what was strictly necessary.

19.5.3

Protection of Special Categories of Data

Article 9 GDPR and Article 10 LED prohibit the processing of special categories of personal data such as racial or ethnic origins, religious or philosophical beliefs and biometric data. Both provisions allow for exceptions: for example, where the data subject consents, where the information is ‘necessary for reasons of a substantial public interest’ on the basis of national or EU law subject to the principle of proportionality and respecting the essence of the right to data protection (Article 9(2)(a) and (b) GDPR), or where the processing of such data is authorised

67 68 69

70

Digital Rights Ireland (n 20); Schrems I (n 41); Opinion 1/15 (26 July 2017); Schrems II (n 40). Schrems I (n 41) paras 93–95, 98. See Digital Rights Ireland (n 20) para 52; Schrems I (n 41) para 92: Joined Cases C-203/15 and C-698/15 Tele 2 Sverige EU:C:2016:970, para 96. 71 Also emphasised by the CJEU in Digital Rights Ireland (n 20). ibid paras 57–68.

Private Life and Data Protection in the AFSJ

by national or EU law to protect the vital interest of the data subject or another person or if it involves data ‘manifestly made public by the data subject’ (Article 10(a), (b) and (c) LED). In Schwarz v Bochum,72 the CJEU specifically addressed the necessity and proportionality of data processing measures involving the use of fingerprints pursuant to Regulation 2252/2004.73 The reasons for the CJEU’s finding that the rules laid down in the regulation were not in violation of Articles 7 and 8 CFR are particularly relevant for other data processing measures in the AFSJ.74 They can be applied to the aforementioned storage of biometrics and exchange of DNA and fingerprints under the Prüm Decision and to the use of large-scale databases for law enforcement purposes. First, the CJEU found that the Regulation only justified recording of a limited number of fingerprints (two) along with a facial image of the passport holder. Second, the CJEU stressed that the processing of fingerprints on the basis of the regulation did not go beyond measures necessary for preventing fraudulent use of passports which consisted in verifying the authenticity of the passport and the identification of its owner. While recognising that fingerprints are widely used in criminal investigations, the CJEU found that in the context of the regulation the data would not be used for purposes other than preventing irregular migration to EU territory. Finally, the CJEU held that the regulation did not provide for the centralised storage of the fingerprints collected, as these would be in the travel document alone, which would remain in the exclusive possession of the holder. Another landmark case – addressing the processing of biometrics – was the ECtHR ruling in S and Marper v United Kingdom of on the retention of DNA materials and fingerprints by UK police.75 Here, the ECtHR found that Article 8 ECHR had been violated by the centralised and permanent storage of the biometrics; the collection of data concerning unconvicted persons, including minors; and the indiscriminate blanket retention of fingerprints. Emphasising the need to consider DNA as sensitive data, the ECtHR warned of the risk of stigmatising individuals, particularly minors, whose data were stored in criminal prosecution files.76

72

73

74 75 76

Case C-291/12 Michael Schwarz v Stadt Bochum EU:C:2013:401, para 27. In Case C-70/18 Staatssecretaris van Justitie en Veiligheid v A B, P EU:C:2019:823, the CJEU applied a more restrictive approach with regard to central storage of biometrics of Turkish nationals and the protection of their rights under the EU-Turkey Association Agreement. Council Regulation (EC) 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States [2004] OJ 385/1. Schwarz (n 72), paras 48, 55–56, 59, 60–61. S and Marper v United Kingdom Apps nos 30562/04 and 30566/04 (ECtHR, 4 December 2008). ibid 119–25.

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19.5.4

Prohibition of Automated Decision-Making

Many of the measures mentioned above are used for risk analysis or profiling run on large-scale databases or, as in the PNR Directive, on data provided by third parties. The use of big data enables risk assessments to be conducted for purposes of security and law enforcement measures and decisions on border and immigration control. Article 22 GDPR and Article 11 LED in principle prohibit decisions based solely on automated processing, including profiling, that produce ‘adverse legal effects concerning the data subject or significantly affects him or her’.77 However, here as well, several exceptions apply. According to Article 22 GDPR, automated decision-making, including profiling, is allowed if it is necessary for the performance of a contract between the data subject and a data controller, if it is authorised by national or EU law and such law lays down ‘suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests’, or if the data subject has explicitly consented to it. The ‘suitable measures’ include, at a minimum, the data subject’s ‘right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision’. Article 11 LED provides an even wider exception: automated decision-making and profiling are in principle prohibited ‘unless authorised by Union or Member State law to which the controller is subject and which provides appropriate safeguards for the rights and freedoms of the data subject, at least the right to obtain human intervention on the part of the controller’. Article 11 further prohibits profiling that would result in discrimination against natural persons on the basis of special categories of personal data. Considering the extensiveness of the aforementioned tools on data processing and the large number of the actors involved, including EU agencies and third states, it would seem hard for individuals confronted with negative decision-making or law enforcement measures to prove that these decisions or actions were based on prohibited profiling or automated decision-making. Moreover, these provisions are further obfuscated by the likelihood of divergent laws and practices in the Member States. Without a definition of ‘appropriate safeguards’ or instructions on how ‘human intervention on the part of the controller’ can be obtained, it may be difficult for individuals and supervisory authorities to check whether the profiling and automated decision-making have been conducted in compliance with the applicable rules.

77

7

A

0 4

7 A 20 1 8 64

62

Article 4 GDPR and Article 3 LED define ‘profiling’ as any form of ‘automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements’.

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Private Life and Data Protection in the AFSJ

19.5.5 Transfer to Third States and Adequate Level of Protection Articles 44–46 GDPR and Articles 35–40 LED provide that the transfer of personal data to third states is allowed only on the basis of a prior decision of the Commission on the adequacy of the level of protection in that third state, or, in the absence of such a decision, the provision of ‘appropriate safeguards’ by the Member State. In its decision on the EU-Canada PNR agreement, the CJEU found that the provisions on the transfer of data to a third state were incompatible with Articles 7, 8 and 52(1) CFR.78 In declaring this agreement invalid, identified the following conditions, which are particularly useful when assessing data processing arrangements and transfers to third states in general. First, the CJEU found that the rules allowing the transfer of personal data to third states must determine in a clear and precise manner what data are to be transferred. Second, it must be guaranteed that an independent supervisory authority will oversee the rules dealing with the transfer of data to a third state. Third, when data are transferred for risk analysis, further use of such data and their disclosure to other authorities must be subject to prior review by a court or an independent administrative body following a reasoned request from those authorities, whose access to the data may be justified by such considerations as the needs of procedures for the prevention, detection or prosecution of crime. Fourth, individual notification must be guaranteed in the event of the disclosure of data by the third state to other authorities or individuals. Finally, the CJEU found that, even if not expressly prohibited by the agreement in question, the transfer of sensitive data to third states was nevertheless incompatible with the fundamental rights to privacy, data protection and non-discrimination.

19.5.6 Right to Effective Judicial Protection and Independent Supervision One of the keystones of fundamental rights protection in general, and the right to privacy and data protection in particular, is the accessibility of legal remedies. The right to effective judicial protection is enshrined in Article 47 CFR, and in Article 79 GDPR specifically in relation to the processing of personal data.79 These provisions complement the right to effective remedies in Article 13 ECHR and offer additional protection. As mentioned in Section 19.2.1, ECtHR case law on Article 13 ECHR has emphasised the right to effective remedies and the need for independent supervision over the storage of personal data in security police records. In Segerstedt-Wiberg v Sweden, the ECtHR found that Article 13 ECHR had been

78 79

CJEU Opinion 1/15 (26 July 2017). GDPR, art 79: ‘[E]ach data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.’

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violated because, inter alia, no effective review had been carried out by an independent supervisory authority empowered to issue binding decisions and no direct access to legal remedies for erasing data had been available to the data subjects.80 In Schrems I, the CJEU, referring to Article 47 CFR, pointed out that effective judicial review to ensure compliance with the provisions of EU law is inherent in the rule of law.81 As the legislation in question did not provide individuals with any recourse to legal remedies to ensure access to their personal data or have them corrected or deleted, the CJEU held that the essence of the fundamental right to effective judicial protection was compromised. In Schrems II, the CJEU declared the Privacy Shield decision invalid, again because it did not afford the persons whose data are transferred to the United States a level of protection essentially equivalent to that guaranteed by Article 47 of the Charter. According to the CJEU, the ombudsman mechanism to which the Privacy Shield decision referred cannot be equated with the possibility for a person to bring a legal action before an independent and impartial court for the purpose of obtaining access to their data or the rectification or erasure of such data.82 In addition to the right to effective judicial protection, supervision by an independent authority is one of the basic principles of data protection according to Article 8(3) CFR. In Digital Rights Ireland, the CJEU also declared the Data Retention Directive invalid because of the lack of provisions guaranteeing access to an independent review. The CJEU found that access by competent national authorities to the data retained was not made conditional on a prior review carried out by a court or an independent administrative body leading to a decision informed by the need ‘to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued’. Nor did the directive include any rules obliging Member States to build such limits into their national laws.83 Referring to Article 8(3) CFR, the CJEU held that the monitoring of compliance with the requirements of protection and security, carried out by independent authorities on the basis of EU law, ‘is an essential component of the protection of individuals with regard to the processing of personal data’.84

19.6

Closing Remarks

Within the AFSJ, the EU has adopted numerous instruments relating to the collection, exchange and use of personal information for various purposes, including law enforcement and immigration control. Over the years, the separations between different systems were blurred as a result of the development of centralised 80 82

81 Segerstedt-Wiberg (n 7) paras 116–20. Schrems I (n 41) para 95. 83 Schrems II (n 40) paras 192–97. Digital Rights Ireland (n 20) para 62.

84

ibid para 68.

Private Life and Data Protection in the AFSJ

multipurpose databases, the collection of biometrics and the 2019 regulations on interoperability. Although, since 2018, the GDPR and the LED have provided new and more extensive rules on data protection, they have granted more discretion to national authorities and EU agencies to deviate from general data protection principles such as purpose limitation and the prohibition of automated decision-making. However, when implementing these rules, national authorities and EU agencies remain bound by the fundamental rights of private life and data protection and the conditions the CJEU and the ECtHR have identified as deriving from these rights. The CJEU and the ECtHR have been critical of centralised storage and law enforcement use of personal data, especially where this includes biometric data and affects unsuspected citizens. Their findings on the disproportionate and possible stigmatising effects of these measures are relevant when assessing large-scale databases such as the VIS, Eurodac and ECRIS-TCN, which only include data on third-country nationals. Even if access to these databases is limited to ‘designated authorities’ and allowed only where there is a suspicion of criminal facts, the discretionary power of Member States to decide who will have access and in what situations increases the risk of misuse in violation of the strict necessity test. The insistence of European courts on further safeguards to protect the proportionality of data processing measures and prevent the stigmatisation of innocent individuals is also important when evaluating profiling or risk assessment practices. Finally, the large number of instruments addressing data processing, each with its own set of data protection rules, combined with the complex relationship between the GDPR, the LED and the new regulations on interoperability, do not result in a transparent legal framework. The complexity of rules makes it difficult for data subjects to understand not only which law applies but also which state or organisation they need to address to exercise their right to access data and have them corrected or deleted, or their right to effective judicial protection. This is a problem not only for individuals, however, but also for users and data protection authorities. In the end, effective enforcement of data protection rights is indispensable in ensuring the accuracy and legitimacy of data processing and thus maintaining mutual trust between the states that share information within the AFSJ.

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20

Citizenship and Non-Discrimination Rights in the Area of Freedom, Security and Justice ANNETTE SCHRAUWEN

20.1

Introduction

Article 3(2) of the Treaty on European Union (TEU) imposes a mandate on the EU to ‘offer its citizens an area of freedom, security and justice’ (AFSJ). ‘Freedom’ refers to the freedom of citizens to move within the whole of the EU without internal border controls and under a common regime for migration policy and external border control. ‘Security’ denotes cross-border protection through operational cooperation between police forces and the development of EU criminal law. ‘Justice’ implies equal justice for all through mutual recognition of judicial and extrajudicial decisions in civil matters. The AFSJ thus brings together a set of themes that ‘does not form a “natural” unity in terms of a clearly defined overall project’.1 To compensate for the loss of internal border control, especially of persons, Member States had already started cooperating with each other on most of the justice and home affairs matters now covered by the AFSJ section of the Treaty on the Functioning of the European Union (TFEU). The introduction of the notion of EU citizenship and the accompanying right for every citizen of the Union to move and reside freely within the territory of the Member States made cooperation in justice and home affairs an even higher priority.2 In the rhetoric of the EU, the notions of free movement, citizenship and the AFSJ are closely linked. In order to travel, work and live safely anywhere in the EU, citizens must be protected against international crime and terrorism while enjoying equal access to justice and respect for their fundamental rights across the entire EU.3 Measures issued under the TFEU’s AFSJ provisions are aimed mainly at security and justice. These measures somewhat obscure the legal relationship between ‘pure’ AFSJ matters and the freedom implicit in EU citizenship. One can nonetheless find links

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3

N Walker, ‘In Search of the Area of Freedom, Security and Justice: A Constitutional Odyssey’ in N Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP 2004) 5. Desmond Dinan, Ever Closer Union: An Introduction to European Integration (4th ed, Palgrave MacMillan 2010, 4th edition) 530–33. C Boswell and A Geddes, Migration and Mobility in the European Union (Palgrave MacMillan 2011) 189.

Citizenship and Non-Discrimination Rights in the AFSJ

between the two at the point where the freedom aspect of citizenship law intersects with the law on security and justice. This chapter explores the interplay between the development of the AFSJ and citizens’ fundamental free movement rights, including the right not to be discriminated against on the basis of nationality, and bearing in mind that the AFSJ was introduced to foster free movement within a borderless area.4 Without pretending to offer an exhaustive overview, the chapter considers cases in which that interplay has been most evident. It starts with brief reflections on EU citizens’ free movement and non-discrimination rights as fundamental rights and then turns to the core areas of the AFSJ. The ensuing sections discuss connections between citizenship law and the development of the AFSJ, roughly following the order in which Article 67(2)–(4) TFEU lists the three prongs of Union action: immigration and asylum policy, criminal matters and civil matters. The final section draws some conclusions on the impact of AFSJ developments on citizens’ free movement rights.

20.2 EU Citizenship, Free Movement Rights and NonDiscrimination The right to move and reside freely within the territory of the Member States has been described as a primary right that is inseparable from citizenship of the Union.5 It is subject to the public policy and public security limitations laid down in the founding treaties (the Treaties), and to limitations and conditions defined in secondary legislation, most notably the Citizens’ Rights Directive (CRD).6 The Court clearly linked non-discrimination and free movement in its early case law on citizenship. According to that case law, EU citizens lawfully resident in a Member State other than that of their nationality can invoke Article 18 TFEU’s general prohibition of discrimination based on nationality in all situations falling within the material scope of EU law.7 That case law also allows citizens to invoke their right to non-discrimination whenever the discriminatory treatment is related

4 5 6

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TEU consolidated version [2016] OJ C202/1, preamble, 12. Case C-85/96 Martínez Sala EU:C:1997:335, Opinion of AG Pergola, para 18. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/ EEC and 93/96/EEC [2004] OJ 2004 L158/77. Case C-85/96 Martínez Sala EU:C:1998:217, para 63.

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to the exercise of free movement and residence rights,8 although the conditions and limitations explicitly mentioned in the CRD have also had an impact on non-discrimination rights. The right to move and reside freely was addressed in Article 45 CFR without reference to limitations and conditions. Article 52(2) CFR makes it clear that Charter rights established in the Treaties shall be exercised under the conditions and within the limits set out in those Treaties. Thus, the freedom to move and reside is a ‘regulated’ freedom.9 The fact that Article 45 CFR merely confirms or ‘reproduces’10 TFEU free movement rights does not affect its relevance when it is connected to other fundamental rights. Through the exercise of the fundamental right to free movement, citizens are able to invoke the right not to be discriminated against on grounds of nationality enshrined in Article 18 TFEU,11 or to claim the protection of other fundamental rights affirmed in the Charter.12 Article 21(2) CFR reproduces Article 18 TFEU’s prohibition on discrimination. This might explain why answers to preliminary questions relating to Article 21(2) CFR often ignore the Charter provision and focus instead on Article 18 TFEU or the free movement provisions prohibiting discrimination.13 In Egenberger, a case related to Article 21(1) and discrimination on religious grounds, the Court explained that Article 21 CFR confers on individuals a directly enforceable right, even against other individuals.14 In the few cases in which the Court mentioned the relationship between citizenship, limitations on free movement and Article 45 CFR, it did not refer to Article 45 CFR as justifying a more intense review of the limitations.15 Either it simply passed over Article 45, even when the referring judge had pointed to its possible relevance,16 or, when mentioning it, did so without referring to any consequences

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11 12 13 14 15

16

See eg Case C-224/98 Marie-Nathalie D’Hoop v Office national de l’emploi EU:C:2002:432; Case C-274/96 Bickel and Franz EU:C:1998:563; Case C-148/02 Garcia Avello EU:C:2003:539; Case C-103/08 Gottwald EU:C:2009:597; Case C-164/07 Wood EU:C:2008:321; Case C-524/06 Huber EU:C:2008:724. Case C-308/14 European Commission v United Kingdom EU:C:2015:666, Opinion of AG CruzVillalón, para 71. See E Spaventa, ‘Article 45’ in S Peers and others (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014). Case C-137/09 Josemans EU:C:2010:433, Opinion of AG Bot, para 37. eg CFR arts 7, 24; see Case C-165/14 Rendón Marín EU:C:2016:675, para 66. Case C-270/13 Iraklis Haralambidis EU:C:2014:1358, Opinion of AG Wahl, para 36. Case C-414/16 Egenberger EU:C:2018:257, paras 77–78. For a similar observation on the review of fundamental rights in cases concerning derogations from free movement rights, see Dominik Düsterhaus, ‘EU Citizenship and Fundamental Rights: Contradictory, Converging or Complementary?’ in D Kochenov (ed), Citizenship and Federalism in Europe: The Role of Rights ( CUP 2017) 660. Case C-430/10 Gaydarov EU:C:2011:749, para 21.

Citizenship and Non-Discrimination Rights in the AFSJ

it might have on the review17 or treated it like the right of free movement in the Treaties, whose conditionality is established in secondary legislation. In Zeman,18 the Court seemed to accept that the substantive content of Article 45 CFR may be contingent on any measure adopted under the Treaties that places conditions on the free movement of persons, as was the case in Zeman by virtue of the European Firearms Directive.19 This directive allows Member States to adopt measures more stringent than those of the Union. The Court considered this ‘optioning rule’20 as amounting to the ‘conditions and limitations’ of secondary legislation and refrained from reviewing it in relation to Article 45 CFR.21 Had the Court proceeded with the review, it would have tested whether ‘limitations are provided for by law, respect the essence of free movement and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others’.22 Such an Article 45 CFR review has yet to occur in practice. Articles 21 and 22 TFEU make both the right to free movement, and the right to equal treatment subject to limitations and conditions in secondary legislation. Article 18(1) TFEU prohibits discrimination on grounds of nationality ‘[w]ithin the scope of application of the Treaties, and without prejudice to any special provisions therein’ (emphasis added). Equivalent wording appears in Article 21(2) CFR; as a result, the CRD, which is connected to Article 18(1) TFEU via the ‘specific provisions’ of Articles 21 and 22 TFEU, also conditions and limits the Charter right not to be discriminated against on grounds of nationality. Where the limits and conditions are complied with or are inapplicable, citizens may invoke the general prohibition on discrimination in Article 18 TFEU in two situations: first, if they suffer discriminatory treatment that is due or related to the fact that they exercise or have exercised free movement rights; or second, if this discriminatory treatment might deter the Union citizen from moving.23 Therefore,

17

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Case C-434/09 Shirley McCarthy EU:C:2011:277, para 27; Case C-162/09 Lassal EU:C:2010:592, para 29. Case C-543/12 Zeman EU:C;2014:2143, para 39. Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons [1991] OJ L256/51. To use the words of Daniel Sarmiento, ‘Who’s Afraid of the Charter? The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe’ (2013) 50 CMLRev 1267, 1279; see also Düsterhaus (n 15) 649. cf Case C-650/13 Delvigne EU:C:2015:648, where the Court referred to the explanations relating to the Charter and concluded that Article 39(2) CFR ‘constitutes the expression in the Charter of the right of Union citizens to voting in elections to the European Parliament in accordance with Article 14(3) TEU and Article 1(3) of the 1976 Act [concerning the election of the members of the European Parliament]’. However, that does not prevent the Court from reviewing a national measure in the light of Article 39(2) CFR. 23 ibid para 46. Case C-184/99 Grzelczyk EU:C:2001:458, para 31.

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citizens moving to another Member State or returning to their own Member State may claim the right not to be discriminated against, compared to nationals of the host state24 or non-moving nationals of the state of their nationality.25 Their claims may sometimes tie citizenship law to developments in the AFSJ, which results in interactions that open the way for the law to evolve. The following sections further explore these mutual interactions in the fields of immigration policy, criminal matters and civil matters.

20.3

EU Immigration Policy and Citizenship Rights

There is a conceptual overlap between residence rights for non-EU family members under EU citizenship law and immigration law. Cross-references between EU citizenship law and EU immigration law should therefore come as no surprise. Broadly speaking, family reunification for non-EU family members falls under one of three distinct legal frameworks depending on the situation of the sponsor: national law if the sponsor is a national who did not exercise free movement rights; the CRD if the sponsor is a EU citizen who has exercised free movement rights; or the Family Reunification Directive (FRD)26 under EU immigration law if the sponsor is a non-EU national.27 Thus, non-EU family members of EU citizens have derivative residence rights under EU citizenship law, unless EU citizenship status bears no relevance because free movement rights have not been exercised or the enjoyment of EU citizenship rights has not been denied, in which case national immigration law will apply. Citizenship law interacts with immigration law in cases where families of mixed nationalities claim residence rights. Cross-referencing and mutual influences are not unusual in the development of CJEU case law.28 In Chakroun, the Court interpreted the income condition in the FRD vis-à-vis EU immigration law by analogy with two cases on citizenship law29 to arrive at a more migrant-friendly position. In doing so, it identified the aim of the FRD as family reunification.30 In the more recent case of Khachab, the Court slightly rephrased the aim of the FRD as being to ‘facilitate the integration of third country nationals in Member States by making 24 26

27 28

29

30

25 See Case C-73/08 Bressol EU:C:2010:181. See Marie-Nathalie D’Hoop (n 8) para 35. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12. See also Case C-87/12 Kreshnik Ymeraga EU:C:2013:291, para 33. See D Thym, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’ (2019) 21 EJML 166, 175–76. Case C-578/08 Chakroun EU:C:2010:117, paras 46 and 64 (referring to Case C-291/05 Eind EU:C:2007:771 and Case C-127/08 Metock EU:C:2008:449). Chakroun (n 29) para 43.

Citizenship and Non-Discrimination Rights in the AFSJ

family life possible’.31 It took a less migrant-friendly approach to income conditions in the FRD, referring to the ‘burden on the social assistance system’ mentioned in the CRD.32 As noted by Thym, the Court’s interpretation of the CRD’s express goal of avoiding an unreasonable burden on the host state’s social assistance system preceded the FRD interpretation.33 In X, the Court will have to decide whether the citizenship case law on sufficient resources can be applied to the interpretation of that concept in the context of the Long-Term Residents Directive.34 In Diallo, the Court explicitly referred to both the CRD and the FRD when explaining the notion of ‘dependent direct relative’ and then argued that the CRD did not authorise the Belgian government to issue citizens’ family members automatically with residence cards when the authorities failed to take a decision within the established six-month period.35 Sixteen months later, the Court ruled that a similar automatic issuance of a residence permit under the FRD was also precluded.36 The co-existence of citizenship rights and immigration law could result in an obligation to examine an application for residence rights under citizenship law in situations where they are denied under immigration law. In KA and Others,37 the Court required Belgium to examine whether any residence rights could be derived from an EU citizen on the basis of Article 20 TFEU despite the entry bans imposed on the applicants under the Return Directive.38 The co-existence of citizenship rights and immigration law and their conceptual overlap have at times resulted in a migrant-friendly outcome via the application of EU immigration law without departing from a strict interpretation of citizenship law. Examples can be found in O, S and L,39 where the Court on the one hand upheld the exceptional nature of residence rights derived from non-moving EU citizens40 while on the other suggesting that the national authorities should examine residence under the FRD from the perspective of the best interests of the children.41 Similarly, it seemed less difficult for the Court to deny a Japanese father residence rights under citizenship law, because residence under the Long-Term Resident Directive was available.42 EU citizens possess the right to return with family members after periods of genuine residence in another Member State. Not being able to continue the family 31 33 34

35 37 38

39 41

32 Case C-558/14 Khachab EU:C:2016:285, para 26. ibid para 39. Notably in Case C-333/13 Dano EU:C:2014:2358, para 74; Thym (n 28) 186–87. Case C-302/18 X EU:C:2019:469, Opinion of AG Saugmansgaard Øe; Council Directive 2003/109/ EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44. 36 Case C-246/17 Diallo EU:C:2018:499, para 52. Case C-706/18 X EU:C:2019:993. Case C-82/16 KA and Others EU:C:2018:308. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98. 40 Joined Cases C-356/11 and C-357/11 OS and L EU:C:2012:776. ibid para 57. 42 ibid para 80. Case C-40/11 Iida EU:C:2012:691.

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life that came into being in a host state would deter EU citizens from moving to another Member State.43 In some Member States, this results in reverse discrimination in the sense that citizens who have moved may, upon return in their state of nationality, claim residence rights for family members under lenient EU citizenship rules. Family members of their non-moving fellow nationals, however, may have to fulfil financial and integration conditions under national law that are sometimes even stricter than the rules applying to family reunification involving non-EU-national sponsors under the FRD.44 One could argue that this outcome is incompatible with the fundamental nature of EU citizenship status. The Court has admittedly rejected an interpretation of the CRD that is less migrant-friendly than that of the FRD,45 but it has not extended that reasoning to EU citizens who have always lived in the Member State of their nationality – which is in line with the principle of conferral.46 One way to reduce the room for reverse discrimination could be to adopt the interpretation of Article 21 TFEU proposed by Advocate General Sharpston in Zambrano as encompassing an independent right to move and a free-standing right to reside.47 In Zambrano, the Court did not follow the Advocate General’s invitation. It ruled that Article 20 TFEU, and not Article 21 TFEU, precluded national measures that deprived EU citizens of genuine enjoyment of the substance of their EU citizenship rights. Hence, the (exceptional) right not to be expelled from the territory of the Union, and thus a right to stay, is derived from the status of EU citizenship itself. On the one hand, this means that the content of the right not to be forced to leave the territory of the Union does not depend on limitations and conditions laid down in the Treaties and secondary legislation. On the other hand, the right to stay under EU law remains a subsidiary remedy in the event that the national right to stay affirmed in Article 3 of Protocol 4 ECHR is not upheld.48

43

44

45 46

47 48

Case C-456/12, O and B EU:C:2014:135, paras 49–50; Case C-133/15 Chavez-Vilchez EU:C:2017:354, paras 54 and 55; Case C-165/16 Lounes EU:C:2017:862, paras 46 and 61. On differences in protection and the need for a more coherent regime governing the relationship between the EU and individuals, see S Iglesias Sánchez, ‘Fundamental Rights Protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence’ (2013) 15 EJML 137. Case C-127/08 Metock EU:C:2008:449, para 69. Note that in cases where national law makes the Family Reunification Directive directly and unconditionally applicable to situations that do not come within its scope, such as family reunification with nationals or with beneficiaries of subsidiary protection, the Court has jurisdiction to interpret the directive. See Case C-635/17 E EU:C:2019:192; Case C-257/17 C and A EU:C:2018:876. Case C-34/09 Zambrano EU:C:2010:560, Opinion of AG Sharpston, para 101. S Iglesias Sánchez, ‘A Citizenship Right to Stay? The Right Not to Move in a Union Based on Free Movement’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP 2017) 380–81.

Citizenship and Non-Discrimination Rights in the AFSJ

Zambrano and subsequent case law on residence rights for family members of static citizens initially implied that the principle of the best interests of the child should not be taken into account when assessing residence rights under Article 20 TFEU, whereas the principle is expressly mentioned as part of the assessment under the FRD.49 Paradoxically, the result is that the conditions for family reunification of non-EU family members with (minor) EU citizens are stricter than for family reunification of non-EU citizens. This was made clear in O, S and L mentioned above. In the more recent case Chavez-Vilchez, Advocate General Szpunar, referring to the Court’s interpretation of the FRD in O, S and L, unequivocally argued that the principle of the best interests of the child was the lens through which the provisions of EU law must be read.50 Despite following the Advocate General, the Court made no reference to its interpretation of the FRD in O, S and L, however. Nevertheless, one can see how developments in citizenship law solely intended for exceptional situations are conceptually linked to immigration cases, showing how citizenship law and AFSJ matters interact and mutually influence the evolution of the law. Thym notes how public policy, an autonomous concept under EU law, represents a ‘prime example’ of the Court establishing uniform standards in line with secondary legislation in the field of free movement and citizenship law that have subsequently influenced the interpretation of EU migration law.51 He describes how public policy case law emphasises the horizontal overlap between specific areas of EU law at an abstract level, but without setting out clear legal criteria or delineating their overlaps and dissimilarities. The examples he cites include HT and Fahimian. In HT the Court based its interpretation of the public policy and public security exception in the Qualification Directive on its interpretation of those concepts in the CRD.52 In Fahimian, where the Court again could have referred to citizenship law in its interpretation of the public security exception under the Students Directive, it nonetheless pointed to the contrast with citizenship law and granted national authorities far wider discretion than

49 50

51 52

Dir 2003/86/EC (n 26) art 5(5). Case C-133/15 Chavez-Vilchez EU:C:2016:659, Opinion AG Szpunar, para 45; see also A Schrauwen, ‘The Fundamental Status of Minor Union Citizens and the Best Interests of the Child’ in S Mantu, P Minderhoud and E Guild (eds), EU Citizenship and Free Movement Rights: Taking Supranational Citizenship Seriously (Brill Nijhoff 2020). Thym (n 28) 179–82. Case C-373/1 HT EU:C:2015:413, paras 77–79; Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9.

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they would have enjoyed under the CRD.53 At times, the interpretation of public policy under migration law influences its interpretation under citizenship law. Recent cases involving persons who, prior to being in a position to claim rights as a member of the family of an EU citizen, were excluded from international protection under the Qualification Directive because of participation in crimes against humanity show how the findings of fact in the exclusion decision are incorporated within the citizenship regime protecting against expulsion.54 An approach that gives greater consideration to EU citizenship was taken in KA and Others. If residence rights can be derived from EU citizenship, the citizenship regime relating to expulsion, including assessment of the applicability of Articles 7 and 24(2) CFR, comes into play regardless of the criteria on which previous return decisions and entry bans under the Return Directive were based. As with concepts related to family reunification, the interpretation of the concepts of public policy and public security as used in citizenship law and migration law interact and mutually influence each other. Indeed, as Section 20.4 shows, these concepts lie at the intersection of citizenship and criminal law.

20.4

Security, Borders, Criminal Matters and Citizenship Rights

While the abolition of internal border controls may have removed a means available to Member States to internally protect the security of their citizens, the EU has introduced measures based on mutual recognition designed to ensure internal security and counter coordinated criminal initiatives facilitated by free movement. At the same time, external border controls have been strengthened at both EU level, through agencies such as the European Border and Coast Guard Agency, and at the level of private parties, through the Carrier Sanctions Directive and the Employer Sanctions Directive. Also, steps have been taken to increase security in migration and asylum policies through reliance on criminal sanctions,

53

54

Case C-544/15 Fahimian EU:C:2017:255, paras 39–40; Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12 (no longer in force, replaced by Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing [2016] OJ L132/21). On the analogy and contrast between citizenship law and family reunification with respect to the public policy exception, see Joined Cases C-381/18 and C-382/18, GS and VG EU:C:2019:1072. Joined Cases C-331/16 and C-366/16 K. and HF EU:C:2018:296.

Citizenship and Non-Discrimination Rights in the AFSJ

high tech equipment and huge databases.55 In addition, counterterrorist measures are intended to ensure the security of the population in the EU. Many suspected terrorists in Europe are internal rather than external, being either European or, if non-European, possessing financial assets and businesses within the EU.56 In general, where intra-EU movement is concerned, Member States must not impose on EU citizens and their family members security and control measures, such as visa requirements, other than those provided for under the CRD.57 Counterterrorism has played a multifaceted role in triggering the construction of the AFSJ.58 For example, it has tied security considerations to judicial cooperation in the EU, as illustrated by the introduction of the European arrest warrant following the 9/11 attacks.59 This connection reflects a wider debate on the ascendancy of security concerns at the expense of free movement within the AFSJ. Indeed, security considerations pervade the citizenship regime at its intersection with EU criminal law, as shown in the following discussion of, first, expulsion measures under the CRD and, second, the European arrest warrant. Article 28 of the CRD regulates the expulsion of EU citizens and their family members on grounds of public policy or public security. It provides an enhanced level of protection to those enjoying permanent residence status under the CRD and provides an exceptional level of protection to minors and to EU citizens who have resided for more than ten years in the host Member State. Article 28 CRD is situated at the intersection of freedom and security, where both a ‘strengthening of the feeling of citizenship’60 and security as a core objective of the AFSJ are to

55

56

57 58

59

60

T Spijkerboer, ‘Changing Paradigms in Migration Law Research’ in C Grütters, S Mantu and P Minderhoud (eds), Migration on the Move. Essays on the Dynamics of Migration (Brill Nijhoff 2017) 16; Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 [2001] OJ L187/45; Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24. C Eckes, ‘EU Counter-Terrorist Sanctions against Individuals: Problems and Perils’ (2012) 17(4) European Foreign Affairs Review 113, 120. She concludes that the complexity of the individual sanctions regime and the legal uncertainty it causes remain problematic from a fundamental rights perspective. Case C-202/13 Sean Ambrose McCarthy EU:C:2014:2450. J Argomaniz, O Bures and C Kaunert, ‘A Decade of EU Counter-Terrorism and Intelligence: A Critical Assessment’ (2015) 30 Intelligence and National Security, 191; C Kaunert, European Internal Security: Towards Supranational Governance in the Area of Freedom, Security and Justice? (Manchester University Press 2010). D Occhipinti, ‘Still Moving Toward a European FBI? Re-Examining the Politics of EU Police Cooperation’ (2015) 30 Intelligence and National Security 234, 248; Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) [2002] OJ L190/1. Dir 2004/38/EC (n 6) recital (17).

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be honoured.61 Hence, the Court looks at criminal law under the AFSJ when interpreting Article 28 CRD. In Tsakouridis, the Court referred to a framework decision on drug trafficking and found that, as the conduct in question might pose a threat to both public order and public security, expulsion was justified under both the enhanced and exceptional level of protection. In PI, the Court argued that, as foreseen in Article 83(1) TFEU and in a directive combating sexual abuse and sexual exploitation of children, the conduct in question indeed represented a particularly serious crime that posed a threat to public security.62 These rulings were said to obscure the distinctions between different levels of protection against expulsion as well as between public policy and public security.63 The link between EU criminal law and citizenship law thus seems to dilute the protection against expulsion.64 The longer the stay in the host state lasts, the greater is the protection against expulsion, length of stay being regarded as an indicator of the subject’s degree of integration in the host state.65 In Onuekwere, the Court stated that serving a prison sentence testified to non-compliance with the values expressed in the criminal law of the host state and therefore undermined the degree of integration.66 Hence, periods of imprisonment do not count towards the residence period required for increased protection against expulsion. This qualitative aspect of integration in the host state returned in later case law on expulsion, notably in MG, B and Vomero and K and HF.67 It has been called ‘moralisation of the public policy/ public security exception’.68 Interestingly, the Court also finds these moral values in EU criminal law and the values of the Union as expressed in Articles 2 and 3 TEU. The result is a more restrictive view of citizens’ rights under the CRD and, as observed by Coutts, a shift from a harm-oriented conception of the public policy exception to an offence-oriented conception focusing on citizens’ responsibility to conform to the values of both the host state and the Union.69 Whereas some 61

62

63

64 66 67

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L Azoulai and S Coutts, ‘Restricting Union Citizens’ Residence Rights on Grounds of Public Security: Where Union Citizenship and the AFSJ Meet: P.I.’ (2013) 50 CMLRev 553. Case C-145/09 Tsakouridis EU:C:2010:708, paras 46–47; Case C-348/09 PI EU:C:2012:300, paras 25–28. For an in-depth analysis of both cases, see Azoulai and Coutts (n 61). D Kostakopoulou and N Ferreira, ‘Testing Liberal Norms: The Public Policy and Public Security Derogations and the Cracks in European Union Citizenship’ (2014) 20(3) Columbia Journal of European Law 167; E Spaventa, ‘Earned Citizenship: Understanding Union Citizenship through its Scope’ in D Kochenov (ed) EU Citizenship and Federalism: The Role of Rights (CUP 2017); D Kochenov and B Pirker, ‘Deporting Citizens within the European Union: A Counterintuitive Trend’ (2013) 19(2) Columbia Journal of European Law 369. 65 Kochenov and Pirker (63) 383. Dir 2004/38/EC (n 6) recital (24). Case C-378/12 Onuekwere EU:C:2014:13, paras 25–26. Case C-400/12 MG EU:C:2014:9; Joined Cases C-316/16 and C-424/16 B and Vomero EU:C:2018:256; Joined Cases C-331/16 and C-336/16 K and HF EU:C:2018:296. S Coutts, ‘The Expressive Dimension of the Union Citizenship Expulsion Regime: Joined Cases C-331/16 and C-336/16, K and H.F.’ (2018) 3 European Papers 833. ibid.

Citizenship and Non-Discrimination Rights in the AFSJ

maintain that the intersection of EU criminal law and citizenship law could lead to the notion of a ‘European society’,70 the expulsion of Union citizens on the basis of common Union values expressed in criminal law is diametrically opposed to the fostering of free movement rights of citizens for which the AFSJ was introduced.71 An alternative view sees the Court’s understanding of the relationship between crime and citizenship as largely focused on security and the legitimacy of EU criminal law, and scarcely compatible with citizenship law.72 EU citizenship law is aimed at promoting integration throughout the European Union, whereas the case law on expulsion sees integration, measured by obedience to the law, as a condition for citizenship rights. Similar reasoning may be applied, although only in exceptional circumstances, in cases where a non-EU parent with a criminal record has sole custody of minor EU citizens. This reasoning could result in EU citizens being forced to leave the European Union as a consequence of the criminal behaviour of the non-EU-national parent or guardian upon whom they depend.73 The case law on expulsion is difficult to reconcile with the Court’s claim to striking a necessary balance between the threat to public security on the one hand and social rehabilitation and reintegration on the other. Reintegration is in the interests of both the individual and the Union as a whole.74 In expulsion cases under citizenship law, the Court overlooks the detrimental effects of deportation measures on rehabilitation and reintegration.75 Mancano links this disconnect to wider tendencies in EU criminal law, where mutual recognition and forced movement without the consent of the person involved lead to individuals being treated according to public security objectives,76 and where reintegration has increasing regard to the protection of the public rather than a person’s rehabilitation.77 Reintegration is also a relevant consideration in the context of the European arrest warrant (EAW). The EAW Framework Decision allows Member States to refuse the surrender of nationals, or persons ‘staying’ or ‘resident’ on their territory. In Kozłowski, the Court qualified the terms ‘staying’ and ‘resident’ as covering situations in which persons have established their actual place of residence in the host state or have acquired connections similar to those arising from residence.78 Referring to observations made by ten Member States and the Commission, the Court acknowledged that serving a sentence in the host state increases the chances of the requested person reintegrating into society.79 The same reintegration 70

71 72

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Myriam Benlolo Carabot, ‘Citizenship, Integration and the Public Policy Exception: B and Vomero and K. and H.F.’ (2019) 56 CMLRev 771, 801–02. Azoulai and Coutts ( n 60) 566–67. L Mancano, ‘Punishment and Rights in European Union Citizenship: Persons or Criminals?’(2018) 24 ELJ 206, 209. Case C-304/14 CS EU:C:2016:674, para 50; Case C-1675/14 Rendòn Marín EU:C :2016:675. 75 76 77 Tsakouridis (n 62) para 50. Mancano (n 72) 222. ibid 213. ibid 222. 79 Case C-66/08 Kozłowski EU:C:2008:437. ibid para 45.

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objective lies behind the possibility of making surrender for prosecution conditional on the guarantee that the surrendered person will be returned to the state of residence to serve their sentence.80 In Wolzenburg, a German residing in the Netherlands claimed that Dutch law was discriminatory because it allowed the surrender of nationals to be refused, while the surrender of lawfully residing Union citizens could be refused only if a five-year residence condition was satisfied. The Court found this difference in treatment objectively justified, as the five-year period ensures sufficient integration in the host state and is the length of the stay required for Union citizens to acquire a right of permanent residence under the CRD.81 In Lopes Da Silva Jorge, the Court added that Union citizens who are integrated into the society of a host state should not, as a rule, be treated differently from nationals of that state.82 It added that Member States would undermine the principle of non-discrimination based on nationality if the grounds for optional non-execution applied to their own nationals only. This interpretation of the EAW seems to foster free movement and non-discrimination of Union citizens. It has been argued that exceptions to surrender should be interpreted with respect for private and family life under Article 7 CFR, and therefore should not be interpreted narrowly.83 In Sut,84 however, the Court ruled that reintegration did not have priority over the prevention of impunity. The EAW had been issued for the enforcement of a custodial sentence, whereas the offence that had been committed was punishable by a fine under the law of Belgium, the surrendering state. The Court ruled that surrender could be refused only if the custodial sentence were served in Belgium. It also remarked that limiting the possibility of refusal reinforces the surrendering system to the advantage of the AFSJ.85 In Popławski, the Court repeated that the main rule should be surrender, whereas refusal to surrender should be the exception and hence interpreted strictly,86 adding that it would be incompatible with the framework decision to create a risk of impunity.87 In Popławski II, the Court declared that impunity was also incompatible with the objective of Article 3(2) TEU creating the AFSJ.88 The emphasis here was placed not on the free movement of individuals within the EU but on combating crime.

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84 86 88

Case C-306/09 IB EU:C:2010:626, para 52. Case C-123/08 Wolzenburg EU:C:2009:616, paras 65, 68, 71. Case C-42/11 Lopes Da Silva Jorge EU:C:2012:517, para 40. Case C-306/09 IB EU:C:2010:404, Opinion of AG Cruz Villalón, para 44; see also Case C-314/18 SF EU:C:2020:191, in which the Court ruled that a person must be returned as soon as the decision has become final, unless their presence in the issuing state is essential to a decision on other procedural grounds that come within the scope of the relevant criminal proceedings. 85 Case C-514/17 Sut EU:C;2018:1016. ibid para 43. 87 Case C-579/15 Popławski EU:C:2017:503, para 19. ibid para 23. Case C-573/17 Popławski II EU:C:2019:530, para 82.

Citizenship and Non-Discrimination Rights in the AFSJ

EU citizenship and criminal law also interact when third countries request the extradition of EU nationals residing in another Member State. In Petruhhin, Russia requested from Latvia the extradition of an Estonian national.89 On the question of whether EU citizens enjoyed the same level of protection as nationals, the Court answered that denying EU citizens protection against extradition was a restriction affecting the free movement of EU citizens and thus had to be justified and proportionate. According to the Court, the AFSJ ensured the free movement of persons ‘in conjunction with appropriate measures with respect to external border controls and the prevention and combating of crime’.90 As the refusal to extradite nationals is generally counterbalanced by the ability to prosecute them for crimes committed outside the territory of the state of their nationality – given that the prosecution of non-nationals for crimes committed outside the territory is generally not possible – the distinction between nationals and non-nationals alleged to be a restriction was justified by the prevention of impunity. The Court referred to judicial cooperation being facilitated through the EAW and suggested that Latvia cooperate with the Member State of nationality, Estonia, which could issue an EAW if under national law it had jurisdiction to prosecute the person concerned. As a matter of proportionality, surrender to the Member State of nationality should take precedence over extradition to a third state.91 The obligation to apply cooperation and assistance mechanisms provided for in EU law before surrendering a Union citizen to a third state was extended to surrender requests for the purpose of enforcing a sentence in Raugevicius. Interestingly, the Court held that under citizenship law the host state should allow Union citizens residing permanently on its territory to serve there a sentence that was pronounced abroad if it accords that possibility to its own nationals, as they are comparably situated with regard to the prevention of impunity.92 The precedence of cooperation between the Member States over extradition to a third country for purposes of prosecution was further nuanced in Pisciotti, where American authorities asked Germany to extradite an Italian national in the context of the EU-USA extradition agreement.93 The German constitution prohibits the extradition of its own nationals, but not the extradition of non-nationals. The Court assessed the compatibility of this distinction with Article 18 TFEU in the context of the EU-USA agreement and declared that Germany must exercise its 89 91

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90 Case C-182/15 Petruhhin EU:C:2016:630. ibid para 36. ibid paras 42–50. Certainly, authorities may not extradite to a third state if extradition would prejudice Article 19 CFR rights; idem para 60. See also Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Ca˘lda˘ru EU:C:2016:198. Case C-247/17 Raugevicius EU:C:2018:898, paras 46–47. For a more detailed account, see S Coutts, ‘From Union Citizens to National Subjects: Pisciotti’ (2019) 56 CMLRev 521, 533–34. Case C-191/16 Romano Pisciotti EU:C:2018:222; Agreement on Extradition between the European Union and the United States of America of 25 June 2003 [2003] OJ L181/27.

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discretion in this context in accordance with primary law and ‘in particular, with the rules of the TFEU on equal treatment and the freedom of movement of Union citizens’.94 The Court then referred to the prevention of impunity as a legitimate objective of EU law which may justify restriction of free movement.95 The Court indicated that the priority should be to surrender Pisciotti to the state of nationality, which must be kept informed throughout. The Court does not oblige Member States to protect their nationals, but it allows them to do so via the responsibility to inform. In this case, Italy was informed but did not issue an EAW. According to Coutts, a shift has occurred: now, instead of a Union citizen deriving protection from the Union legal order, cases are conceived in terms of a national citizen over whom the state of nationality may assert jurisdiction.96 This is further evidence of the increasing focus on security and prevention of crime at the expense of free movement of citizens in the relationship between Union citizenship and criminal law.

20.5

Civil Matters, Judicial Cooperation and Citizenship Rights

The recognition and enforcement of judicial decisions from other Member States has particular relevance in situations where citizens have invoked their free movement rights. Mutual recognition can have an enabling function by eliminating obstacles to free movement caused by differences in national regimes, such as complex property rights for international couples.97 Some cooperation measures in civil matters focus on procedural rights or the proper functioning of the Single Market.98 This section will leave those measures aside and concentrate instead on measures that potentially interact with citizenship law, namely, in relation to family matters and free movement. Whenever EU citizens can move freely across borders with their children, there is a chance of the children being moved wrongfully or illegally. Council

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95 96 Romano Pisciotti (n 93) para 42. ibid para 47. Coutts (n 92) 537. Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L183/1; Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships [2016] OJ L183/30. See eg Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001]OJ L174/1; Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters [2014] OJ L189/59.

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Regulation 2201/2003 provides for the transfer of cases and mutual recognition of judgments in family matters with the aim, among other purposes, of ensuring these children’s return.99 In that process, the free movement rights of the parents might be curtailed. The Court made this explicit in JD,100 where the Irish Child and Family Agency asked the Irish authorities to execute a placement measure on a child taken by his mother from the United Kingdom to Ireland. The agency also asked the Irish judge to transfer the case to the High Court of England under Regulation 2201/2003. The regulation exceptionally allows, in matters of parental responsibility, for a case to be transferred to the court of another Member State that is ‘better placed to hear the case’ if this is in the best interests of the child. Therefore, the possible detrimental effect on the child’s free movement rights must be considered when deciding whether to execute the transfer. The referring judge remarked that parents could use their free movement rights to conceal their child from the child protection authorities and that free movement provides opportunities for forum shopping.101 One of the aims of the regulation relating to child abduction and wrongful removal is to prevent parents from using their free movement rights to elude the rightfully competent jurisdiction.102 In JD, the Court emphasised that the best interests of the child prevailed over any other considerations. The free movement rights of the parent, or the reasons why the parent moved, should therefore not be taken into consideration, unless they could have adverse effects on the situation of the child. When a parent has custody of the children and does not violate anyone else’s custody rights, their movement with her children is a legitimate exercise of their free movement rights and their right to determine the children’s place of residence. Thus, if the other natural parent does not have custody rights, the free movement rights of the moving parent and children prevail, even if the other parent has previously lived with and taken care of the children.103 With the introduction of Union citizenship, areas of civil law where nationality is used as a connecting factor no longer fall outside the scope of EU law. Case law provides examples of different naming systems that are treated as an obstacle to the free movement of Union citizens, resulting in situations where Member States are forced to accept a right or a legal status that a Union citizen ‘is lawfully entitled to under the law of another Member State’.104 This is 99

100 101 102 103 104

Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000[2003] OJ L338/1 (Brussels II bis). Case C-428/15 JD EU:C;2016:819. Case C-428/15 JD EU:C:2016:458, Opinion of AG Wathelet, para 22. Case C-498/14 PPU Bradbrooke EU:C:2014:2484, Opinion of AG Jääskinen, para 57. Case C-400/10 PPU J McB EU:C:210:582. T Ackermann, Annotation of Case C-148/02 Carlos Garcia Avello (2007) 44 CMLRev 141, 152.

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illustrated by a case relating to sexual orientation and the definition of marriage. In Coman, the Court was asked whether ‘spouse’ included the same-sex spouse and whether the state of nationality must recognise a derived residence right for a same-sex spouse upon the return of its national, even if the law of that state did not recognise same-sex marriages. The Advocate General has answered yes to both questions and referred to respect for private life and the prohibition of discrimination on grounds of sexual orientation affirmed in Articles 7 and 21(1) of the Charter.105 The Court also indicated that a derived right of residence for a same-sex spouse may not be denied on the ground that national law does not recognise marriages between persons of the same sex, and that the right to free movement encompasses a derived right of residence upon the return of the EU citizen under conditions that may be no stricter than those in the CRD. The Court referred to Article 7 of the Charter and ECtHR case law establishing that the relationship of a homosexual couple may fall within the notion of ‘family life’ and ‘private life’ under Article 8 ECHR.106 The Court carefully limited the obligation to recognise the same-sex spouse to the purpose of granting a derived right of residence, and added that such recognition did not oblige a Member State to allow same-sex marriages under its national law.107 This ruling thus produced a situation where nationals in certain Member States who have used free movement rights may obtain recognition of their marriage, albeit for the sole purpose of residence rights, whereas same-sex partners of nationals who have not moved cannot derive residence rights. It makes the question of whether the Charter can be invoked in cases of reverse discrimination even more relevant. Advocate General Sharpston has suggested that Article 18 TFEU be interpreted as prohibiting reverse discrimination caused by the interaction between free movement rights and national law that entails a violation of a fundamental right protected under EU law, at least where equivalent protection is not available under national law.108 Furthermore, Article 18 TFEU would cover only reverse discrimination that is inconsistent with the minimum standards of protection of the ECHR. Whether reverse discrimination with respect to acceptance of same-sex marriages fulfils that condition remains debatable, although the ECtHR seems to have taken steps in that direction.109

105 106 107

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Case C-673/16 Coman EU:C:2018:2, Opinion of AG Wathelet. Case C-673 Coman EU:C:2018:385, para 50. ibid para 45. On derived residence rights based on a durable non-registered partnership where the state of nationality does not grant residence rights on the basis of durable relationships, see Case C-89/17 Banger EU:C:2018:570. Zambrano, Opinion of AG Sharpston (n 47) paras 144ff. See A Spalding, ‘Where Next after Coman?’ (2019) 21 EJML 117, 120.

Citizenship and Non-Discrimination Rights in the AFSJ

20.6 Conclusions The evolution of the law resulting from the interaction between free movement and non-discrimination rights of EU citizens on the one hand and pure AFSJ law on immigration policy, criminal matters and civil matters on the other has not been unidirectional. The rhetoric of fostering free movement via the creation of the AFSJ does not adequately describe what happens in reality. True, the above sections all include examples of rulings accommodating EU citizenship and free movement. The example in which the best interests of the child were initially ignored out of deference to citizenship law while leading to migrant-friendly decisions in immigration cases, and then were later taken up in citizenship cases clearly shows how the law’s development is prone to fluctuation. Other examples show how the strict interpretation of free movement conditions have been transposed to immigration law and vice versa. Case law on the EAW offers examples of cases where the importance of reintegration of the EU citizen in a host state was emphasised but, at the end of the day, prevention of impunity took precedence. The interaction between the expulsion of EU citizens and EU criminal law has sometimes led to results that did not foster free movement and were hardly compatible with the fundamental status of EU citizenship. On one hand, judicial cooperation in civil matters may result in curtailment of free movement rights of individual citizens. On the other hand, EU citizens can take home certain civil rights and statuses that they would not have obtained under national law, such as the right to a double surname or residence rights for their non-EU same-sex partner. The idea that free movement should be developed in conjunction with measures of border control and crime prevention might lead us to believe that freedom, security and justice are balanced on an equal footing in the measures establishing the AFSJ. It has been called a ‘classic case of matching solutions to problems’, where more support for and justification of cooperation in justice and home affairs was sought through linking cooperation to the goal of free movement.110 It has resulted in the three dimensions that frame the area becoming blurred, and the Court must make sense of the blurred objectives. The resulting ambiguity has led to unpredictable Court interpretations of the objective of the AFSJ and its instruments, which at times have even run counter to the goal of fostering free movement. This overview of the interaction between citizenship law and pure AFSJ matters also shows how the law seems to evolve without a clear direction. Echoing the conclusion drawn by Thym from his study of EU immigration law cases,111 it

110

Boswell and Geddes (n 3) 189–90.

111

Thym (n 28).

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would help if the Court clearly set out the degree of overlap between concepts and rules in the different fields of law, and the degree and criteria for strict or less strict interpretation. Furthermore, as others have noted, allowing security to take precedence over free movement is not in line with the fundamental right to free movement.112 It is to be noted that Articles 45 and 21 CFR play hardly any role in the case law discussed above. Whenever free movement or non-discrimination rights are mentioned, reference is overwhelmingly made to Articles 18(1) and 21 TFEU, not to the Charter provisions. The fundamental nature of both EU citizenship and free movement rights demands strict scrutiny of measures restricting those rights, and especially of the extent to which these measures genuinely meet general interest objectives recognised by the EU. The right to free movement and the right not to be discriminated against should have more weight in the AFSJ and be given priority over control and security.

112

See also E Guild, S Carrera and T Balzacq, ‘The Changing Dynamics of Security in an Enlarged European Union’ in D. Bigo and others (eds), Europe’s 21st Century Challenge: Delivering Liberty (Ashgate 2010) 31–48.

21

Vulnerability and Fundamental Rights in the Area of Freedom, Security and Justice FRANCESCA IPPOLITO

21.1 ‘Vulnerabilisation’ of the AFSJ According to one model of legal philosophy, vulnerability is ‘a universal, inevitable, enduring aspect of the human condition’.1 Questioning the traditional autonomy paradigm at the basis of the Universal Declaration of Human Rights and many national constitutions and human rights treaties, which conceptualise human beings as autonomous rights holders (‘born free’), Fineman reverses such a reductive conceptualisation of the nature of the human condition. She believes that every human being is born physically and socially dependent on their environment and remains so for the rest of their life. Vulnerability can therefore be considered an inherent attribute of human nature: individuals are constantly exposed to potential harm (whether intentional or accidental), to the risks of fluctuating circumstances (due to rearrangements in society or merely because of the changes that come with ageing) and to the possibility of being dependent (as a result of innate or acquired disease or disability). Fineman calls for reconsideration of a primary component of the human condition, otherwise neglected, and offers an alternative to the rigid and formal concept of equal protection under the law. She calls for a change of discourse in law and politics in order to realise social equality between citizens and point the state’s policy and obligations in the right direction. Despite the new light shed on vulnerability by these recent developments in philosophy and legal theory, the universal importance of vulnerability for every human being – while admitting that individuals may experience it in different ways – does not appear to correspond to the understanding of vulnerability found in European law. It is true that within the European Union legal order we can talk about progressive ‘vulnerabilisation’. Vulnerability is a notion present both implicitly in many 1

M Fineman, ‘Equality, Autonomy, and the Vulnerable Subject in Law and Politics’ in M Fineman and A Grear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013); M Fineman, ‘The Vulnerable Subject and the Responsive State’ (2010–11) 60 Emory Law Journal 251, esp 255.

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areas of EU competence that directly affect the legal position of individuals and, with diverse consequences, in various EU legislative instruments, though there is no definition or exhaustive enumeration of the situations it may cover. Although vulnerability as an autonomous and specific notion has only rarely been explicitly framed as a legal criterion in EU law, the impact of EU law on the legal situation of vulnerable individuals has been considerably enlarged as a result of the fields of competence established as part of the Area of Freedom, Security and Justice (AFSJ). Indeed, the matters covered by the AFSJ are, by nature, more prone to affect fundamental rights, whose protection constitutes the basic prerequisite for the correct functioning of the various rules composing the AFSJ acquis. Also, Title V TFEU has identified various categories of persons considered as vulnerable: they include victims of crimes, asylum seekers, trafficked persons and unaccompanied minors. However, in contrast to the generalised conception of vulnerability as a universal notion that is proposed in legal theory and ethics, it is a rather an understanding of vulnerability as contingent on circumstances of particular individuals or groups of subjects that is emerging, which makes it hard to establish a taxonomy of such a multi-dimensional concept. In both political and legislative documents, we find the binomial ‘vulnerable persons’, ‘vulnerable situations’ and ‘vulnerable migrants’ recurring in the AFSJ’s ‘blocks’ of criminal cooperation and immigration and asylum2 Yet expressions such as ‘vulnerable persons’ have been used in combination with expressions like ‘particularly vulnerable’, ‘especially vulnerable’ and ‘aggravating factors of vulnerability’,3 though without specific guidance regarding the criteria and elements on the basis of which someone should be regarded as a vulnerable person. Nor is there any discussion of the possibility of overlaps or switches between a group and an individual approach. But they introduce the idea of a graduation of vulnerability according to circumstances or situations external to the personal factor or based on a summa of different personal factors that may increase personal vulnerability and identify those who are ‘more deeply, variably and selectively vulnerable to the action of particular others and the particular institutions on whom [they] come to depend for specific and often unavoidable purposes’.4 This chapter focuses on the normative level so as to shed light on these blurry elements of the shifting notion of vulnerability with a view to proposing a 2

3

4

Communication, ‘The Global Approach to Migration and Mobility’ (Communication) COM (2011) 743 final, 24. See Council of the EU, ‘The Stockholm Program: An Open and Secure Europe Serving and Protecting Citizens’ Council doc 17024/09 [2010] OJ C 115/1, para 2(3)(3); Commission, ‘An EU Agenda for the Rights of the Child’ COM (2011) 60 final. M Neal, ‘“Not Gods but Animals”: Human Dignity and Vulnerable Subjecthood’ (2012) 33 Liverpool Law Review, 177, 186–87 (emphasis added).

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taxonomy of the different ways in which it is understood across the heterogeneous ‘pillars’ of the AFSJ and assessing the degree of convergence between its various applications in such a fragmented area. After a descriptive presentation of the notion, the analysis will highlight the consequences flowing from this conceptualisation of vulnerability. Adopting a functional approach, it will enquire as to whether the concept of vulnerability brings added value in terms of protection standards and could potentially help to overcome the fragmentation by serving as a means of integrating human rights in the AFSJ.

21.2 A Taxonomy of the Notion 21.2.1 Collective Vulnerability Legislative developments have contributed to the taxonomy of the notion of vulnerability in each of the three ‘blocks’ of the AFSJ. In the criminal cooperation ‘block’, victims’ rights have above all been determinant. Victims in criminal proceedings have been generically qualified as a ‘vulnerable group’,5 first in the framework decision on the standing of victims in criminal proceedings,6 and then in the framework decision on strengthening victims’ rights.7 However, neither instrument provides a definition of the expression. The reference to ‘group’ clearly indicates that the concept of vulnerability is understood to have a collective dimension. Hence, collective vulnerability could be considered the first element of our taxonomy – a grouping of those who share common degrees of exposure to a form of harm. The lack of any other elements to guide our understanding of vulnerability might well be due to the fact that, from the victim’s perspective, there are many possible causes of vulnerability in the context of cooperation in criminal procedures: the probability of victims becoming victimised, the area in which they live, their socio-economic backgrounds and whether or not they have been victimised previously. Indeed, this imprecision could well be an asset, affording the concept greater flexibility when it comes to applying EU law.8

5

6

7

8

On the same notion as applied in other contexts, see L Peroni and A Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention’s Law’ (2013) 11 International Journal of Constitutional Law 1056; F Ippolito ‘Vulnerability on Trial: An Emerging Concept for Advancing Migrants’ Protection in International Adjudications?’ [2018] Rivista di Diritto Internazionale 458. Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings [2001] OJ L82/1, arts 2, 8, 14. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L315/57. In relation to FD 2001/220/JHA, see Case C-105/03 Pupino EU:C:2004:712, Opinion of AG Kokott.

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Further support for a collective conception of vulnerability comes then from the civil cooperation ‘block’, though it is more nuanced, indirect and does not have the same rationale as that discussed above in relation to victims in criminal proceedings. Within the civil cooperation ‘block’, vulnerability is generally expressed in terms of ‘weaker parties’ to be protected from the dangers of party autonomy, with concrete examples of who should be considered weaker. Thus, legislative instruments related to applicable law, such as the Rome I Regulation, state that in contracts concluded with parties regarded as being weaker, the latter should be protected by conflict-of-laws rules that are more favourable to their interests than the general rules.9 For instance, according to Recital (32) of the Rome I Regulation, ‘owing to the particular nature of contracts of carriage and insurance contracts, specific provisions should ensure an adequate level of protection of passengers and policyholders’. According to Articles 5, 7 and 8 of the Rome I Regulation, this protection also extends to passengers, (mass) insurance policy holders and employees when such parties enter into choice-of-law agreements. Interestingly, these parties are protected from the dangers of party autonomy in all cross-border situations. This is in contrast to consumers, who are protected at the level of choice of law (and choice of forum) only if the contract results from activities carried out by a professional with the aim of concluding contracts with consumers in other states.10 Moreover, the Rome I Regulation also regards franchisees and distributors as weaker parties. According to its Article 4(1)(e) and (f), the law of the franchisee’s or distributor’s place of habitual residence applies to a contract. This contrasts with consumers, passengers, (mass) insurance policy holders and employees, whose freedom to choose the law applicable to the contract is not similarly limited. Recital (19) and Article 4(3) of the regulation relating to maintenance obligations, for its part, provides that, in order to protect the weaker party, a choice of court should not be allowed in the case of maintenance obligations towards a child under the age of eighteen.11 As suggested by Rühl, ‘the European legislator apparently assumes that underage maintenance creditors are generally not, relative to 9

10

11

See Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)[2008)] OJ L177/6, recital (23). See ibid art 6(1); Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1, art 17(1)(c); see also P Cachia, ‘Consumer Contracts in European Private International Law: The Sphere of Operation of the Consumer Contract Rules in the Brussels I and Rome I Regulations’ (2009) 34 ELRev 476; F Ragno, ‘The Law Applicable to Consumer Contracts under the Rome I Regulation’ in F Ferrari and S Leible (eds), Rome I Regulation. The Law Applicable to Contractual Obligations in Europe (Sellier 2009) 144ff. Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1.

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maintenance debtors, in a position to either appreciate the consequences of choice of law or choice of forum or assert their interests instead of weaker parties’.12 Yet it is unclear why there is no provision in international civil procedure protecting maintenance creditors who fall within the scope of the Hague Convention on the International Protection of Adults, or why protection is not analogously afforded to other people who in other contexts are viewed as weaker parties. The terms ‘weaker’ and ‘vulnerable’ should be considered synonymous on the basis of the underlying rationale of the minority of the subjects concerned. Besides, the connection between the two terms has already been explicitly recognised in ECtHR case law.13 Moreover, they are commonly used interchangeably when referring to subjects related to each other through maintenance obligations and the proceedings to which they may give rise. Evidence of this is found in Regulation (EC) 4/2009, where the more specific term ‘vulnerable parties’ was employed when the Commission conceded that the allocation of territorial jurisdiction pursuant to Article 3(b) ‘seeks essentially to protect particularly vulnerable parties by ensuring that they have access to an effective remedy’ and assumes that ‘the local court, owing to its proximity to the facts, is best placed to carry out an appropriate assessment of the subject-matter of the dispute’.14

21.2.2 Resilience as a Factor Qualifying Vulnerability ‘Resilience’ here refers to the ability or capacity of each individual to respond to vulnerability and exercise their agency depending on the context, including the individual’s own characteristics or circumstances and the nature of the harm that is accentuating their vulnerability. Such an understanding of resilience has not yet been affirmed in international legal rulings, probably because it places a heavy burden on applicants and calls for structural measures. Instead, in international litigations vulnerability has been used to simply emphasise the position human beings occupy in relation to the state rather than in relation to each other.15 In other words, vulnerability serves as a means of locating susceptibility to harm and thus of triggering a state’s moral obligation to protect individuals by balancing protection and empowerment. 12

13

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G Rühl, ‘The Protection of Weaker Parties in the Private International Law of the European Union: A Portrait of Inconsistency and Conceptual Truancy’ (2014) 10 Journal of Private International Law 335. See esp Urbárska Obec Trencianske Biskupice v Slovakia App no 74258/01 (ECtHR, 27 November 2007). See Joined Cases C-400/13 and C-408/13 Sanders and Huber EU:C:2014:2171, Opinion of AG Jääskinen, fn 68. Fineman, ‘Vulnerable Subject’ (n 1) 255; I Truscan, ‘Considerations of Vulnerability: From Principles to Action in the Case Law of the European Court of Human Rights’ (2013) 36 Retfærd Nordic Journal of Law and Justice 64.

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At a normative level, however, resilience could help to qualify and define vulnerability more accurately within the AFSJ. In particular, resilience has been determinant in distinguishing the approach to asylum seekers and irregular migrants that has emerged within the AFSJ’s immigration and asylum ‘block’ from the line taken in ECtHR case law. The list model adopted by the EU introduced selective vulnerability, which contrasts with the ECtHR’s recognition of the pure collective vulnerability of those who are seeking international protection or – more recently – who migrate but are deprived of any (regular) status.16 For the EU, not all asylum seekers or irregular migrants should be considered vulnerable. According to the Return Directive, vulnerability applies only to those irregular migrants who are ‘minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psycho-logical, physical or sexual violence’ (which clearly includes victims of trafficking).17 Moreover, opting for open lists that vary according to developments in EU asylum legislation rather than an exhaustive list of vulnerabilities, the entire EU asylum acquis implicitly excludes the possibility that all asylum seekers should be considered as a single vulnerable group per se.18 The other effect the notion of resilience is having is to highlight vulnerable situations, such as being in need of medical assistance or in distress at sea,19 or being

16 17

18

19

See Chowdury and Others v Greece App no 21884/15 (ECtHR, 30 March 2017); Ippolito (n 5). Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98, art 3(9). Compare Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96 with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/60 and Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9. ‘Return Handbook’ annexed to Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks [2017] OJ L339/83; Dir 2008/115/EC (n 17); Regulation (EU) 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC [2014] OJ L150143, art 2(4); Article 16 (3) (l) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L251/1; Regulation (EU) 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) [2013] OJ L295/11.

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suspected or accused of a crime.20 Here, the focus is on the fact that the subjects might often find themselves in particularly vulnerable positions at the investigative stage of proceedings, all the more so as legislation on criminal procedure is becoming increasingly complex, notably with respect to the gathering and use of evidence. This therefore leaves open the possibility that an accused person might not be considered vulnerable. As revealed in a Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union,21 subsequently taken up in the Proposal for a Council Framework Decision on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union in 2004,22 the duty of care to promote fair trials and to avoid potential miscarriages of justice was causally linked to the potential inability of suspects and accused persons to understand or follow the proceedings owing, again, to their age, mental, physical or emotional condition, or a power balance slanted towards the prosecution, law enforcement and judicial authorities.23 Although this proposal was withdrawn after the entry into force of the Lisbon Treaty, extrinsic factors affecting procedural vulnerability are mentioned in subsequent legislation, where exceptions are made for suspects whose understanding of the proceedings is hampered because of their emotional condition.24 This is also the line taken in Recital (51) and Article 13 of the directive on access to a lawyer,25 which refers to suspects ‘who are in a potentially weak position’. Such weakness may result from physical impairments affecting

20

21

22

23 24

25

On their vulnerability, see M Meysman, ‘Quo Vadis with Vulnerable Defendants in the EU?’ (2014) 4 European Criminal Law Review 179; Suzan van der Aa, ‘Variable Vulnerabilities? Comparing the Rights of Adult Vulnerable Suspects and Vulnerable Victims under EU Law’ (2016) 7 New Journal of European Criminal Law 39. Commission, ‘Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union’ (Green Paper) COM (2003) 75 final. Commission, ‘Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union’ COM (2004) 328 final. ibid recital (14). Any reference to the emotional or volitional ability to make free and independent choices affecting their conduct in the proceedings has been abandoned. Yet this idea, which was introduced in the Green Paper, highlighted that some suspects, rather than making tactical choices in light of the evidence against them, may be moved by other reasons when deciding whether or not to cooperate with police investigations. For example, parents with young children may be more likely to (falsely) admit accusations in order to shorten their time in custody and return to the family home as soon as possible, whereas refugees might be more inclined to deny the accusations for fear of losing refugee status or risking deportation. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1.

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the ability to communicate effectively which underpins the fair administration of justice.26 The potentiality of vulnerability is the core element of what we might label circumstantial vulnerability, which interlocks with vulnerability factors (personal and external, or just personal) that increase the level of exposure to harm, leading to aggravated/compounded vulnerability. This highlights characteristics and situations disadvantaging individuals and groups of individuals who are or risk being overlooked by the state. Pointing to them helps to create a greater awareness, consciousness and sensitivity among responsive states when creating assets to build resilience against vulnerability. Aggravated vulnerability is conveyed through the normative use of terms such as ‘most vulnerable’ or ‘particularly vulnerable’ that are scattered across the legislative acts of both the immigration and asylum and the criminal cooperation ‘blocks’ of the AFSJ. For instance, the Dublin III Regulation27 reflecting the CJEU’s ruling in MA,28 consider children’s ‘particular vulnerability’ as a ground for not extending the duration of the procedure for determining the Member State responsible for the examination of the asylum application more than is strictly necessary and for laying down specific procedural guarantees for unaccompanied minors.29 The same applies to suspects or accused persons, and to subjects of a European arrest warrant (EAW)30 (especially if deprived of liberty), who are qualified as ‘most vulnerable defendants’,31 but also as to victims considered vulnerable due to personal characteristics (eg age, disability) and/or to the circumstance of the crime.

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28 29 30

31

See also Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1; Commission ‘Making progress on the European Union Agenda on Procedural Safeguards for Suspects or Accused Persons – Strengthening the Foundation of the European Area of Criminal Justice’ (Communication) COM (2013) 820 final; and European Commission Staff Working Document SWD (2013) 481 final). Regulation 604/2013/EU of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31. Case C-648/11 MA and Others, EU:C:2013:367. Reg 604/2013/EU (n 27) arts 6, 16, recital (13). Commission, ‘Proposal for a Directive of the European Parliament and of the Council on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings’ COM (2013) 824 final. ibid; on protections for suspects and accused persons, see also Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L297/1, art 9.

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This reasoning corresponds to the discrimination factors present in the founding EU treaties and takes account of young victims, disabled victims, victims of hate crimes and victims of domestic and sexual offences. Especially violent crimes (which include sexual offences, trafficking and terrorist offences) engender particularly strong feelings of vulnerability on the part of victims. However, a person’s vulnerability may also depend on the probability of that person being at risk of becoming (re)victimised, for reasons other than those mentioned above. Such reasons could be linked to the area in which the person lives, their socio-economic background and whether or not the person has been victimised previously. The above approach is in line with the roadmap for strengthening victims’ rights issued in 201132 and is reflected in Article 18 of the proposal for a Victims’ Rights Directive, as well as Article 22 of the actual directive and Recital (15) of the directive on the European protection order (EPO), according to which, when issuing and recognising an EPO, competent authorities should give appropriate consideration to the needs of victims, including ‘particularly vulnerable persons’, such as minors or persons with disabilities. The general vulnerability of victims resulting from the fact of being involved in a trial might be exacerbated and aggravated because of ‘high level of fear, risk of intimidation or repeated violence, or being in a personal, social, or economic situation that makes it difficult for the victim to cope with the consequences of the crime or to understand the judicial proceedings’.33 Moreover, some victims may be particularly vulnerable to further victimisation or intimidation by the accused or suspected person or their associates, and the distress of some victims may be made worse through their involvement in criminal proceedings, whether it be to give evidence or to participate in other ways.34

21.2.3 The Exceptional Case of Presumptive Vulnerability Determining the degree of compounded, circumstantial or selective vulnerability requires an assessment of victims’ individual situations, possibly also with regard to the related concept of resilience. However, there are also situations that are automatically categorised as vulnerable by the EU legislator. 32

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34

Resolution of the Council of 10 June 2011 on a Roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings [2011] OJ C187/1. ‘Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions strengthening victims’ rights in the EU’ COM (2011) 274 final, 7; see also Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order [2011] OJ L338/2, recital (15); Commission, ‘Proposal for a Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime’ COM (2011) 275 final, art 18. Directive 2012/29/EU (n 7).

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An example is found in the criminal ‘pillar’ of the AFSJ in relation to children who are victims or suspects. There may be many reasons for classifying child victims as inherently vulnerable, though most likely it is due to the fact that this is how they are qualified in the majority of national laws (where they may also be qualified as vulnerable victims depending on the type of crime).35 It is the CJEU’s intervention that has been providential, originally clarifying in Pupino36 that ‘where … young children claim to have been maltreated, and maltreated, moreover, by a teacher, those children are suitable for such classification having regard in particular to their age and to the nature and consequences of the offences of which they consider themselves to have been victims, with a view to benefiting from the specific protection required by the provisions of [Framework Decision 2001/220/JHA]’.37 Vulnerability was then enshrined in legislation in 2011 for child victims of sexual abuse,38 but the legislation did not take into account the bigger question of whether all minors who are victims of crime should be considered vulnerable, as proposed by Advocate General Kokott.39 Moreover, when children are victims of a particular crime such as trafficking, and if they are unaccompanied,40 they should always be considered as persons with special needs without having to evaluate in each case whether or not they in fact have special needs.41 Somewhat surprisingly, other factors, such as gender, pregnancy, state of health and disability, are discretionary when assessing the vulnerability of a victim.42 Such an automatic qualification of child victims as vulnerable can be seen as constituting the last element in our taxonomy of the notion of vulnerability, which we will call presumptive vulnerability. It also applies to children who are

35

36 38

39 40

41

42

See Commission, ‘Taking Action on the Rights, Support and Protection of Victims of Crime and Violence’ (Public Consultation 2010). 37 Case C-105/03 Pupino EU:C:2005:386. ibid para 53. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA [2011] OJ L335/1, Art 19(4) (‘Child victims of any of the offences referred to in Articles 3 to 7 shall be considered as particularly vulnerable victims pursuant to Article 2(2), Article 8(4) and Article 14(1) of Framework Decision 2001/220/ JHA.’). Pupino, Opinion AG Kokott (n 8) paras 53–59. See Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2011] OJ L101/1, recitals (8), (12), (22). Dir 2013/33/EU (n 18) arts 17, 21; Dir 2011/36/EU (n 40) arts 12, 15, recital (8). Mention is also made of special measures to be put in place (one might think of interviews by persons of the same sex or measures to avoid visual contact between victims and offenders) and the setting-up of specialist support services. Dir 2011/36/EU (n 40) recitals (8), (12).

Vulnerability and Fundamental Rights in the AFSJ

suspects or accused of crimes, though in this case it is a soft law instrument that refers to the concept and in non-exclusive terms.43 Such presumptive vulnerability, which, in the case of minors, is combined with compounded or aggravated vulnerability, does not establish a scale of priorities for state action, but has rather served a more complementary function compared to the other kinds of vulnerability. For instance, if we consider the Directive 2013/32/ EU, while Article 24(3) on vulnerabilities in general just introduces the necessity and opportunity of providing subjects with ‘adequate support in order to allow them to benefit from the rights and comply with the obligations of this Directive throughout the duration of the asylum procedure’, Article 25 specifically on the vulnerability of children details Member States’ duties. These cover the right to be heard and the guarantee of child-friendly justice, particularly with regard to unaccompanied minors, who are entitled to an appointed representative to inform them about the meaning and possible consequences of the personal interview and, where appropriate, about how to prepare themselves for the personal interview. Similarly detailed provisions with analogous guarantees required of Member States can be found in Articles 23 and 24 of the Reception Conditions Directive of 2013.44 Detailed provisions setting out an adapted protection regime also appear within the criminal cooperation ‘block’, where separate instruments have established some general guarantees for suspects and accused persons45 (with the exception of Directive 2010/64/EU on the right to an interpreter46).

43

44 45

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Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings [2013] OJ C378/8 leaves much room for interpretation as to how and where this presumption is to be ‘foreseen’ and requires a medical examination to be carried out by an independent expert to identify vulnerabilities and determine the degree of those vulnerabilities, as well as any specific needs. The expert may give a reasoned opinion on the appropriateness of the measures taken or envisaged in respect of the vulnerable person – an opinion that should be challenged if, in particular, it would have the effect of significantly impeding or restricting the exercise of fundamental rights. Dir 2013/33/EU (n 18). Dir 2010/64/EU (n 26); Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1; Dir 2013/48/ EU (n 25). Recital (27) recognises that a ‘duty of care towards suspected or accused persons who are in a potentially weak position, in particular because of any physical impairments which affect their ability to communicate effectively, underpins a fair administration of justice. The prosecution, law enforcement and judicial authorities should therefore ensure that such persons are able to exercise effectively the rights provided for in this Directive, for example by taking into account any potential vulnerability that affects their ability to follow the proceedings and to make themselves understood, and by taking appropriate steps to ensure those rights are guaranteed’.

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21.3 Vulnerability as a Heuristic Device for Creating a Duty to Protect The taxonomy of vulnerability proposed above serves not just a descriptive but also a preceptive purpose: it alerts to the need for action by the state to allow certain persons or groups of persons to overcome a position of vulnerability. Thus, it functions as a heuristic device, allowing human agency to flourish and suggesting ways to adjusting the structural privilege and disadvantage underlying vulnerabilities in order to advance social justice. As a heuristic device, vulnerability assigns human rights obligations, bringing to light essential aspects of human nature that call into question traditional conceptions of the liberal subject. As an instrument of functional protection responding to the intersection of an ethics of vulnerability with an ethics of needs,47 the notion of vulnerability is contributing to the emergence of an ethics of special state duties within the AFSJ,48 creating an environment conducive to advancing the protection of migrants, victims, defendants and weaker parties.

21.3.1 A General Obligation of Special Protection Such special state duties within the AFSJ appear in the normative provisions of a protection regime tailored to special needs. They are chiefly defined in general terms, mirroring the flexibility that characterises the descriptive conceptualisation of vulnerability within the AFSJ: EU law imposes a broad requirement on Member States to ensure that the particular needs of vulnerable persons are taken into account or given appropriate consideration. Suspects and accused persons and victims are covered, including the specific category of victims of trafficking.49 As for irregular migrants, the Return Directive does not explicitly establish a holistic principle according to which Member States shall take into account the specific situations of vulnerable persons, but limits it to the period for voluntary departure and the periods during which removal is postponed. In such situations, Article

47

48 49

C Mackenzie, W Rogers and S Dodds, ‘What Is Vulnerability, and Why Does It Matter for Moral Theory?’ in C Mackenzie, W Rogers and S Dodds (eds), Vulnerability: New Essays in Ethics and Feminist Philosophy (OUP 2013) 13–14. ibid. See Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1, recital (42); Dir 2011/99/EU (n 33) recital (15); Dir 2013/48/EU (n 25), as complemented by Dir (EU) 2016/1919 (n 31) art 9; Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [2004] OJ L261/19.

Vulnerability and Fundamental Rights in the AFSJ

14(1)(d) provides that ‘Member States shall … ensure that … as far as possible … special needs of vulnerable persons are taken into account’. And Article 16(3) on detention conditions requires that ‘[p]articular attention shall be paid to the situations of vulnerable persons’. And superposed on these requirements is the more general idea that foreigners shall be returned in a humane manner and with full respect for their fundamental rights and dignity.50 With regard to asylum seekers, the recast Reception Conditions Directive of 2013 merely requires Member States to assess whether an asylum seeker is vulnerable with special needs and to provide adequate material reception conditions and health care to those found to be so. The Commission’s proposal to impose on Member States an obligation to establish a procedure for identifying vulnerable asylum seekers was not accepted, but rather turned into a vague assessment of vulnerability, for which a unique administrative procedure was to be put in place within a reasonable time following an application for international protection (although, in some instances, the causes of vulnerability may be linked to questions of fact contested during the process of determining refugee status). This represents an individualisation of the notion of vulnerability as applied to asylum seekers and an acknowledgement of its selective application to this category of migrants.

21.3.2 Complementary Special Protection through Negative Adaptations The above-mentioned general special protection regime is complemented by various forms of adapted protection, some excluding or derogating from the general rule (negative adaptations) and others refining the general rule through adjusted forms of procedural and substantive protection. The negative adaptations include the public order/public policy limit51 and rules of jurisdiction more favourable to the interests of the employee, the consumer or the insurance policy holder.52 The disregard of jurisdictional rules in disputes involving weaker parties constitutes a ground for refusing the enforcement of a judgment under both Article 35 of the Brussels I Regulation and Article 45(1)(e)(i) of the recast version.53 Limiting party autonomy is another instance of the special protection regime being adapted in cases where the designated law or the designated forum is to the (relative) disadvantage of individuals regarded as vulnerable.

50 51

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Dir 2008/115/EC (n 17) recital (2). On the view that the public policy exception is a means of protecting weak subjects in national communities, see F Pocar, ‘La Protection de la Partie Faible en Droit International Privé’ (1984) 188 Collected Courses of the Hague Academy of International Law 339, 350 ff. Reg (EU) 1215/2012 (n 10) recital (13), art 12(3); Reg (EC) 4/2009 (n 11) art 3(b) (case of maintenance creditor). Reg (EU) 1215/2012 (n 10).

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Vulnerability also permits derogations from the Dublin III Regulation and exemptions from certain types of procedures under the Asylum Procedures Directive and the proposed successor regulation establishing a common procedure for international protection in the Union.54 In particular, as far as Dublin III is concerned, it should be noted that, although originally an attempt was made to extend a derogatory regime for identifying the responsible Member State and a provision banning the transfer of certain asylum seekers to those ‘unfit’ for transfer, which could be interpreted as including ‘any person who cannot be transferred due to poor physical and/or mental health’,55 the Council weakened the proposed improvements and dropped the proposed ban. The Dublin III Regulation mentions dependency (part of the very nature of vulnerability) as a reason for disapplying the criteria as set in the regulation for determining the Member State responsible for examining an application lodged pursuant to its provisions.56 The compounded and special vulnerability of minors appears determinant here. In this regard, a key influence was the MA case decided on 6 June 2013, which acknowledged that the second paragraph of Article 6 of Council Regulation (EC) 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national must be interpreted as meaning that, in circumstances such as those of the main proceedings, where an unaccompanied minor with no family present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the responsible Member State.57 Accordingly, the recast legislation confirmed that the main criterion for determining the responsible Member State is the country in which the minor is actually present after lodging an asylum application there even if the child previously lodged asylum applications elsewhere. Consequently, it is not necessarily the first Member State where the child lodged an asylum application that is responsible for examining it. Further, based on its acknowledgement of dependency ‘on account of pregnancy, a new-born child, serious illness, severe disability or old age’, the Dublin III Regulation imposed a derogatory automatic duty for the state on whose territory

54

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56

See Dir 2013/32/EU (n 18) art 33(5), mirroring art 31(7)(b), and Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU’ COM (2016) 467 final, arts 40(5), 41(5), compared to with Dir 2013/32/EU, art 25. L De Bauche, Vulnerability in European Law on Asylum: A Conceptualization under Construction (Bruylant 2012) 103. 57 Reg 604/2003/EU (n 27) art 16(1). MA and Others (n 28).

Vulnerability and Fundamental Rights in the AFSJ

the applicant is present (or the one where the child, sibling or parent is legally resident, unless an applicant is prevented for health reasons from travelling to that Member State for a significant period of time) to keep or bring together the applicant and the child, sibling or parent, provided that family ties existed in the country of origin, that the child, sibling or parent or the applicant is able to take care of the dependent person and that the persons concerned have expressed in writing that this is what they desire.58 On the other hand, outside the context of asylum procedures, the Return Directive was interpreted in Mahdi59 as according Member States the power to authorise those who have not obtained a right to stay but are stateless, or whose country of origin refuses to cooperate with their removal, to remain for compassionate or humanitarian reasons. Thus, it implicitly introduces a vulnerability as criterion guiding the exercise of national discretion to apply a derogatory regime of protection. Likewise, vulnerability – especially (but not only) the compounded and aggravated vulnerability of minors – influenced the CJEU’s legal reasoning when evaluating the proportionality of national due diligence in connection with Dublin returns. According to its ruling in CK, the ‘systemic deficiencies’ that constitute exceptional circumstances justifying a departure from the Dublin distribution of responsibilities have two dimensions. They cover not only deficiencies in the national asylum procedure and reception conditions, but also deficiencies affecting the health care and sustenance of particularly vulnerable persons such as a mother and a child.60 So an individual’s state of health (mental health in this case) becomes a factor to take into consideration when assessing whether particular treatment or acts are sufficiently severe to constitute an aggravating circumstance capable of lowering the threshold for triggering the protection afforded by Article 4 of the Charter.61 Derogatory regimes based on vulnerability are present in the criminal cooperation ‘block’, too. In Aranyosi and Ca˘lda˘raru,62 the CJEU overcame its previous reluctance to acknowledge any exception to the principle of mutual trust in the context of the EAW.63 First, it recognised that the due diligence required of national authorities should take account of the vulnerability rationale. A person who is surrendered to the issuing Member State could be exposed to a risk inhuman and degrading treatment within the meaning of Article 4 of the Charter in 58 59 60

61 62 63

Reg 604/2003/EU (n 27) art 16 ; Case C-245/11 K EU:C:2012:685. Case C-146/14 PPU Mahdi EU:C:2014:1320, para 87. On the position of the Commission, see Case C-578/16 PPU CK EU:C:2017:108, Opinion of AG Tanchev, para 39. See Case C-578/16 PPU CK EU:C:2017:127, paras 59, 88, 96. Case C-404/15 Aranyosi and Ca˘lda˘raru EU:C:2016:198. See, among others, Case C-396/11 Radu EU:C:2013:39; Case C-399/11 Melloni EU:C:2013:107.

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that Member State. Thus, the threshold for a risk of inhuman and degrading treatment could depend on the type of vulnerability at issue. National authorities are therefore required to examine in concreto whether there are general or particular deficiencies in the detention system of the requesting Member State (because of their impact on certain groups) and, depending on their findings, the execution of the EAW may need to be postponed.64

21.3.3

Complementary Special Protection through Positive Adaptations

Besides the derogatory regimes discussed in the preceding section, vulnerability can also be seen as a heuristic device for positive standards of protection. Specific human rights guarantees may take the form of additional rights accruing a given group of individuals on account of a particular characteristic they possess or a specific experience they share, or they might take the form of adjusted standards of protection. An example of additional rights can be found in the directive on human trafficking,65 which introduces additional rights to protect children during interviews as part of criminal investigations and proceedings66 through (i) the appointment of a guardian and/or a representative;67 (ii) the recognition of assistance and support measures focusing on their physical and psycho-social recovery; and (iii) on the pursuit of a durable solution for the person in question. Similar guarantees are found in Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence.68 Examples of adjusted standards of protection are traditional procedural rules and provisions that adapt to situations where vulnerability is at stake,69 as when children seek international protection. Such children are entitled to a fair hearing at the remedy stage, a special duty of care during the conduct of the personal interview70 or the medical examination that might be used to determine their age,71 and the presence of a person representing the unaccompanied minor during the personal interview.72 We also find various types of additional protection in the AFSJ’s criminal cooperation ‘pillar’. Where penalties are concerned, for instance, compounded vulnerability (which should cover all children) explains why Recital (12) of Directive 64 67 69

70

65 66 Aranyosi and Ca˘lda˘raru (n 62) para 94. Dir 2011/36/EU (n 40). ibid recital (22). 68 ibid art 5(1)–(3), recital (23). Dir (EU) 2016/343 (n 49). Dir 2013/32/EU (n 18) and COM (2016) 467 final (n 54); Directive 2013/33/EU (n 18); Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ 2016 L 132/1; for relevant case law, see eg Case C-277/11 MM EU:C:2012:744; Case C-166/13 Mukarubega EU:C:2014:2336, para 60; Case C-249/13 Boudjlida EU:C:2014:2431; Case C-491/10 PPU Aguirre Zarraga EU:C:2010:828. 71 72 Dir 2013/32/EU (n 18) art 15(3)(e). ibid art 17(5). ibid art 25(1)–(4).

Vulnerability and Fundamental Rights in the AFSJ

2011/36 calls for penalties to be more severe when the offence is committed in certain circumstances, for example against a particularly vulnerable victim. Similarly, when the directive on combating the sexual abuse and sexual exploitation of children and child pornography73 sets minimum levels for criminal penalties and facilitates reporting, investigation and prosecution, it evokes the child’s vulnerability when describing offences concerning sexual abuse. Abuse places a child in a particularly vulnerable position, especially if the child suffers from mental or physical disability or is in a situation of dependence. These should constitute aggravating circumstances.74 Another example of additional protection is found in Article 3 of the Victim’s Rights Directive, which requires Member States to guarantee the right of victims to be informed about their procedural rights (such as the right of access to a lawyer, any entitlement to free legal advice and the conditions for obtaining such advice, the right to be informed of the accusation, the right to interpretation and translation and the right to remain silent). Whether provided orally or in writing, what is most important is that the information should be ‘in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons’.75 By contrast, if we consider the same right as adapted to suspects or accused persons, the degree of adaptation is narrower, limited to minors, and sometimes even inadequate. A clear example is the unjustified distinction that Article 4 of the directive on procedural safeguards for child suspects76 introduces, in relation to the content rather than the accessibility of the right, between those rights about which children are to be informed ‘promptly’ and those about which they are to be informed at the ‘earliest appropriate stage in the proceedings’. Further, and worryingly, this information can be given orally rather than in writing, which undermines the protection, particularly in view of the fact that there is no requirement for an appropriate adult or a lawyer to be present when this information is handed over or for the information to be given in a child-friendly form (the directive merely mentions ‘simple and accessible language’). This contrasts with the Council of Europe guidelines on child-friendly justice, which requires information and advice to be provided to children ‘in a manner adapted to their age and maturity, in a language which they can understand and which is gender and culture sensitive’.77 Such differences in the special protection might lead to conflicts of vulnerabilities when both aggravated vulnerability and presumptive vulnerability potentially apply to victims and suspects.

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74 75 Dir 2011/93/EU (n 38). ibid art 9(a). Dir 2012/29/EU (n 7) recital (21), arts 3, 5. Dir (EU) 2016/800 (n 69). Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on ChildFriendly Justice (2011) 21.

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Let us take as an example the right to a fair trial. When child victims are also witnesses according to Article 24(1)(a) of the directive on strengthening victims’ rights,78 Member States must ensure that in criminal investigations ‘all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings’. This provision aims to protect children from reliving past traumas, for instance as a result of having to face their abuser. If, however, we turn to the case law of the ECtHR on the right to a fair trial, reference is made there to the need for national courts to balance the interests of the defence against the interests of victims called upon to testify.79 There is nothing comparable to this in Directive 2012/29/EU. When the 2001 framework decision was in force, the interpretative indications given by the CJEU in Pupino80 and Katz81 left a wide margin of discretion to Member States to give primacy to a fair trial, which led to real-time video conferencing being the preferred solution to balance the protection of the witness and the right to examine the witness.82 The video-recording of interviews may be an alternative, provided that the suspect’s inability to examine the victim as a witness is sufficiently counterbalanced with safeguards in favour of the suspect.83 A literal reading of Article 24(1)(a) of Directive 2012/29/EU allowing interviews with child victims to be audiovisually recorded and the recording used as evidence might suggest that there is no need for such balancing of the different interests at stake. In that case, however, the guarantees of a fair trial for suspects could be compromised: as stated in the literature, ‘a potential barrier to the use of the [recorded] interview is that some recordings are unacceptable in terms of their technical quality or other visibility issues’.84

21.4 Vulnerability as a Normative Means of Realising Justice within the AFSJ? If we consider that vulnerability generally has been perceived by legal writers as a notion that exists alongside non-discrimination to help ensure substantive equality, then the EU legal order seems to have taken a different line in its vulnerability discourse. On the contrary, vulnerability seems to be used there as a 78 79 80 82

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Dir 2012/29/EU (n 7). Doorson v Netherlands App no 20524/92 (ECtHR, 26 March 1996) para 70. 81 Pupino (n 36) paras 44, 59. Case C-404/07 Katz EU:C:2008:553, paras 44–45. See B Schünemann, ‘Protection of Children and Other Vulnerable Victims against Secondary Victimisation: Making it Easier to Testify in Court’ (2009) 10 ERA-Forum 387, 395. ibid. See J McEwen, ‘The Testimony of Vulnerable Victims and Witnesses in Criminal Proceedings in the European Union’ (2009) 10 ERA-Forum 369, 380.

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means of realising through flexible equity the justice proclaimed in the AFSJ’s title.85 The justice aspect has thus far been rather disappointingly ‘degraded to a minor notion’86 and conceptualised in mere terms of justice to be administrated,87 rather than elevated to an EU value under Article 2 TEU. Only Article 3 announces it as an object to be promoted by introducing the concept of social justice. This problematic issue is underlined by Douglas-Scott who writes of the ‘very thorny issues of distributive justice, whereas the problems of the AFSJ will often turn on issues of corrective justice, which raise different concerns’,88 in particular involving natural justice and equity. What we have proposed here as a theoretical vulnerability construction could therefore be instrumental to realising the so far neglected concept of justice within the AFSJ. Moreover, it would respond to Williams’s89 calls to remedy the EU’s failure to take justice seriously as a concept traditionally centred on human rights. Vulnerability in particular can provide a more human-rights-centred argument for the main issues of corrective justice arising within the AFSJ. The notion is concerned with preventing the denial of agency and ensuring consistency and justifiability in governance. Through this argument, the vulnerability rationale behind what we have seen as a special protection regime introduced normatively across all the ‘blocks’ of the AFSJ could help to overcome the risk of disintegration within such a heterogeneous AFSJ by making fundamental rights a source of integration through a homogeneous and horizontal legislative and moral approach, further enforceable through the judicial assessment of alleged breaches of fundamental rights. Therefore, vulnerability might become one of the ‘multiple rationalities’90 related

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On justice as a critical concept in law, see S Douglas-Scott, Law after Modernity (Hart 2013). S Douglas-Scott, ‘Debating Europe’s Justice Deficit: The EU, Swabian Housewives, Rawls, and Ryanair’ in D Kochenov, G De Burca and A Williams (eds), EU Justice Deficit (Hart 2015); Douglas-Scott, The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights, Mutual Trust and Democracy? (2009) 11 Cambridge Yearbook of European Law Studies 53; Douglas-Scott, ‘Human Rights as a Basis for Justice in the European Union’ (2017) 8 Transnational Legal Theory 59. The Council and Commission Action Plan of 3 December 1998 on how best to implement the Treaty of Amsterdam on an area of freedom, security and justice [1999] OJ C19/1 referred to the need to bring to justice those who threaten the freedom and security of individuals and society and, thus, the need for crime control, the administering of justice, and judicial cooperation. Justice is perceived as a means of dealing with those who threaten society. For commentary, see M Fichera, J Monar and E Herlin-Karnell, ‘Justifications and Europe’s Area of Freedom, Security and Justice’ in D Kochenov, G De Burca and A Williams (eds), EU Justice Deficit (Hart 2015). 89 ibid. A Williams, The Ethos of Europe: Values, Law and Justice in the EU (CUP 2010). A Grimmel, ‘Judicial Interpretation or Judicial Activism? The Legacy of Rationalism in the Studies of the European Court of Justice’ (2012) 18 ELJ 518, 519.

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to the protection of fundamental rights, an aid in assessing the seriousness of fundamental rights violations and the evidence required to prove such violations in the sensitive area of criminal, civil and migration cooperation.91 In this way, the role of fundamental rights protection as an ethical component of the EU will be enhanced, leading to a better understanding of justice and thereby contributing to the constitutional architecture of such a sensitive area.

91

V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31 YEL 319.

22

Epilogue: Of Judges and Trust MICHAL BOBEK

22.1 Of Trust (and Recognition) Not many notions pair as poorly with law as does trust. Where there is trust, there is little need for law. Law steps in where there is no (more) trust. Yet, perusing the chapters in this volume, as well as virtually any recent article touching on the AFSJ,1 mutual trust is repeatedly highlighted as the foundation stone and the pre-requisite for an entire area of law. Law based on trust? A system that asks judges to believe without checking? Intuitively, there is something odd with such a notion. Ever since law replaced religion, and later on morality and other previously applicable normative regimes for human behaviour, the law and those who administer it have been tasked with dispute settlement.2 Law is the residual system to which we turn because we do not trust.3 Small communities that initially run on trust, mutual knowledge and social consensus grow bigger and become diverse. Whether that community is a native tribe, a village once lost in the middle of nowhere in Continental Europe or the professional community of Jewish diamond cutters and traders in Antwerp,4 the same story keeps repeating itself: the bigger and more diverse the community becomes, the more mutual trust among its members is lost. The previous codes of behaviour and dispute settlement mechanisms, often independent of the state or political body to which such communities might have belonged geographically,5 must be replaced by the impersonal law and its formal enforcement mechanisms.

1

2 3 4

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All views expressed in this chapter are strictly personal to the author. eg, in no shy terms and presumably not just addressed to true believers in the power of the One Ring, Francesco Maiani and Sara Migliorini, ‘One Principle to Rule Them All? Anatomy of Mutual Trust in the Law of the Area of Freedom, Security and Justice’ (2020) 57 CMLRev 7. See generally Philip R Wood, The Fall of the Priests and the Rise of the Lawyers (Hart 2017). See eg Ute Frevert, Vertrauensfragen: Eine Obsession der Moderne (CH Beck 2013). This professional community has served as a privileged example for a number of sociological studies; see eg Lisa Bernstein, ‘Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry’ (1992) 21 Journal of Legal Studies 115. For a refreshing account of how that mode of governance was in fact the norm long before (constitutional) legal pluralism was discovered as a novelty, see eg Gunnar Folke Schuppert, The World of Rules: A Somewhat Different Measurement of the World (Max Planck Institute for Legal History Frankfurt 2017).

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The birth of modern statehood, and with it the authority of modern legal systems, tells a similar story. It simply moved the focus from a micro to the macro level and added centralisation, political unification of state power and a desire for legal uniformity to the mix. The pre-modern state was largely based on beliefs. The pre-modern legal authority was a matter of personal status and trust. Legitimacy derived from inherited personal status and transcendent sources.6 The eighteenth and nineteenth centuries brought about a profound change. Trust and charismatic authority ceased to be the foundation of legal and administrative authority. That basis gradually shifted from the religious to the rational.7 Eventually, Weberian formalistic, impersonal rationality8 was put at the foundation of the law and legal system. Authority is no longer legitimised by our beliefs or any transcendental sources. Its legitimacy now stems from impartial, rational and logical processes of reasoning and justification. The change in the type of authority also brought about a change in the structure of reasoning, justification and the judicial process. Reasons for a decision were to be stated in writing, amenable to control and review.9 For the first time, appeals were introduced. Later on, centralised (second) appeals to one national (supreme) court came into existence as well. With the advent of judicial centralisation in the second half of the nineteenth century,10 the review of lower judicial decisions was introduced in Continental Europe.11 6

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11

P Becker and R Von Krosigk, ‘New Perspectives on the History of Bureaucratic and Scientific Subjects’ in P Becker and R Von Krosigk (eds), Figures of Authority (Peter Lang 2008) 16. For an overview of the correspondingly different models of pre-modern legal interpretation, see generally B Frydman, Le Sens des Lois: Histoire de l´Interprétation et de la Raison Juridique (3rd edn, Bruylant 2011). The profound change in perception signalled, for example, in R Descartes, Discours de la Méthode (Flammarion 2000) 124–25. M Weber, Wirtschaft und Gesellschaft: Grundriss der Verstehenden Soziologie (5th edn, Mohr Siebeck 1980), 496ff, 551ff. In a system based on trust in the quality of the decision-making authority (ie charismatic authority), there is logically no place for any appeal or review. There is also little need for any reasoning to support the judgment passed. Between the sixteenth and eighteenth centuries, the practice in most countries on the European Continent started changing; reasons were given, but only orally when announcing the sentence. Finally, roughly at the end of eighteenth century, reasons started to be stated in full and committed to writing. See generally P Godding, ‘Jurisprudence et Motivation des Sentences, du Moyen Âge à la Fin du 18e Siècle’ in C Perelman and P Foriers (eds), La Motivation des Décisions de Justice (Bruylant 1978); T Sauvel, ‘Histoire du Jugement Motivé’ (1955) 61 Revue du Droit Public 5. The early French Republic was the precursor of this trend almost a century before. Indeed, one of the first moves of the revolutionary French government was to create a cour de cassation in 1790, whose task was to control judges and tribunals. See eg Jacques Krynen, L’Emprise Contemporaine des Juges (Gallimard 2012), 37ff. Although a precursor, France was not the only example of (judicial) centralisation. The first institutional changes of this sort were introduced, quite tellingly, within the apparatus of the medieval Roman Catholic Church. See generally MR Damaška, The Faces of Justice and State Authority (Yale University Press 1986), 29ff.

Epilogue: Of Judges and Trust

In sum, modern law can hardly be described as a system based on trust. If anything, it is a normative system based on distrust. In social terms, law as a regulatory regime comes into play when other normative regulatory systems fail or disappear. In terms of institutional design, judicial systems are not based on trust either: they are built, certainly in the Continental civilian tradition, on extensive checks and controls.12 After all, why else would there be a right to an appeal, broad access to second appeals (courts of cassation), constitutional complaints, a number of extraordinary appeals, and international courts and monitoring bodies potentially reviewing the same national decisions. Hardly because one trusts in the impeccability of the decision of a first-instance court. In philosophical terms, distrust and the need to control the majority, in the name of (the discreet and insular) minorities of the day,13 or however else those without a political voice might be called, even yielded one of the most powerful systemic justifications for judicial review.14 Similar ideas were rekindled after 1989 in the systems of judicial review of a number of central and eastern European countries, particularly in the form of powerful and assertive constitutional courts. Within those systems, the aim and indeed the very purpose of constitutional review and justice could be best described as generalised distrust vis-à-vis everybody, during the early post-1989 years, with a correspondingly robust constitutional review of both legislation and the decisions of ordinary courts.15 Despite this rather dense start, this Epilogue is not supposed to be a tiresome essay in political philosophy or legal history. The historical excursion just completed was carried out in order to demonstrate one point: basing the operation of an area of law on trust is likely to clash with a rich and powerful bundle of ideas and historical experience at national level. Should judges now extend the courtesy of full trust not just to their colleagues in the courtroom down the corridor,16 or even to those fellows in another district court at the other end of their Member State,17 but to all of their colleagues in other Member States as well? The historical

12

13

14

15

16

17

The common law tradition, by contrast, is arguably based more on trust and coordination through precedents than on extensive hierarchical review. Each tradition thus creates a different type of authority and officialdom: coordinated on the one hand and hierarchical on the other. See MR Damaška, The Faces of Justice and State Authority (Yale University Press 1986), 197ff. Famously per Justice Harlan Fiske Stone in the majority opinion in United States v Carolene Products Company 304 US 144 fn 4 (1938). John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980), esp ch 6. On practice in some of those courts in the 1990s, including statistical data on the number of successful challenges concerning the constitutionality of national statutes, see eg Radoslav Procházka, Mission Accomplished: On Founding Constitutional Adjudication in Central Europe (Central European University Press 2002). Which might often pose the greatest problem. It may sometimes be easier to trust someone personally unknown to us. Who we all know are a bit odd, don’t we?

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excursion shows why, for a number of those judges, law based on mutual trust seems, in the best of circumstances, akin to an oxymoron, or, in a less candid scenario, a prescription for abdicating their main judicial responsibility, which is precisely to control, check and review. It is certainly true that the degree of default judicial distrust is heavily determined by historical and cultural factors.18 Often, the connection is all too visible, almost reflecting a law of direct proportion: the fresher the historical memory of an authoritarian or dictatorial regime, the more robust and precious, and often distrustful and intrusive, judicial review tends to be. By contrast, in communities where the most recent revolution involved beheading a king many centuries ago, an incident now a curious story relegated to history books, with those communities having continuously and peacefully evolved ever since, courts tend to show greater trust and deference to the legislative and political choices made within that political community.19 However, in the former type of Member States, the reaction to a suggestion that elements previously reviewable be placed out of the reach of the judicial control of national courts may be correspondingly agitated, especially if that control or review has been delegated to a foreign body, the quality and intensity of whose scrutiny is then found wanting.20 Although law based on trust is perhaps not the best recipe with which to start, then, trust based on law, its observance, smooth application and decent function is certainly a better way forward. Seen this way, trust is not a pre-requisite for the law, but rather something that the law and social interaction generate. Trust becomes the end destination, not the starting point. Trust can be earned gradually. This is necessarily a slow, sometimes painful, bottom-up process. Only an immense (and rather dangerous) degree of social engineering would consider that trust could be ordained from the top down. Trust by decree, putting trust in the place of law, is hardly trust. Rather, such a decree would be a prohibition of distrust and accordingly a prohibition to review. The prohibition might eventually be accepted, unenthusiastically with grumbling

18

19

20

For a concrete case study, see Michal Bobek, ‘Fundamental Rights and Fundamental Values in the Old and New Europe’ in Sionaidh Douglass-Scott and Nicholas Hatzis (eds), Research Handbook on EU Law and Human Rights (Edward Elgar 2017). Whether this is to be considered a blessing or a curse might of course be open to discussion. See eg Marlene Wind and Andreas Follesdal, ‘Nordic Reluctance Towards Judicial Review Under Siege’ (2009) 27 Nordic Journal of Human Rights 131. See eg Anneli Albi, ‘From the Banana Saga to a Sugar Saga and Beyond: Could the PostCommunist Constitutional Courts Teach the EU a Lesson in the Rule of Law?’ (2010) 47 CMLRev 791; Anneli Albi, ‘Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums’ (2009) 15 ELJ 46.

Epilogue: Of Judges and Trust

discontent, but the fact that a national judge obeys a prohibition on reviewing an action’s legality does not mean that they believe the prohibition to be just. As evidenced by a number of chapters in this volume that focus on specific areas in the AFSJ, as well as the case law of the Court of Justice upon which they comment, the institutionally permissible articulation of distrust in individual cases tends to materialise in two dimensions: the protection of fundamental rights and the principle of legality. Both of these might be present in a single case. Furthermore, both are likely to be invoked in cases of systemic deficiencies and systematic failures. Those discussions also suggest that, in individual cases, a necessary balance must be struck between ensuring the smooth functioning of a given AFSJ system of mutual recognition and protecting fundamental rights or legality. Indeed, in the structure of an individual case, protecting fundamental rights or the principle of legality are often portrayed as countervailing interests which must be balanced with the mutual recognition sought within the individual regime in question. Thus, trust and recognition is said to be the default rule to which an exception may then be allowed in individual, duly justified cases. It is true that this pattern of reasoning in a judicial decision is a natural reflection of the structure of the corresponding legislative act. Individual instruments in the area of mutual recognition regimes, be they in civil, criminal or even administrative matters, often begin by postulating the obligation to recognise within the instrument’s scope of application. Respect for fundamental rights tends to be formulated as an exception to that default obligation, or as an issue not to be affected by the instrument in question.21 However, it is short-sighted to conceive of those values and interests as contrary to one another, certainly in the long term and if one wishes to generate trust in the system. A system that disrespects the fundamental rights of the people subject to it, or in which various considerations, including ad hoc utility and instrumentalist objectives,22 are allowed to displace the overall requirement of legality, is never likely to attract trust. The system might be accepted, tolerated, and might even be solicited by Member States, but not necessarily because it is trusted. Therefore, respect for legality and respect for fundamental rights are not grounds for exceptions to mutual recognition; they are in fact its basis.

21

22

For a pars pro toto example, see EAW FD art 1(3) (‘This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.’). I sought to highlight that difference between individual effectiveness of one single procedure and structural effectiveness of an instrument in my recent opinion in Case C-717/18 Valtònyc EU:C:2019:1011, paras 85–88.

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22.2

Of Interests (and Rights)

The last point opens up another question for reflection: are there interests or values other than trust that could guide or fuel cooperation in the AFSJ? Nowadays, mutual recognition and mutual trust tend to be muttered in the same breath. A number of chapters in this volume comment on their necessary connection, and rightly so. François-Xavier Millet, in his chapter, maps the advent of mutual trust as a requirement complementing and accompanying mutual recognition, in particular in the context of mutual cooperation in criminal matters over the last two decades. That chapter nonetheless shows that the link between mutual recognition and mutual trust is not inevitable. The principle of mutual recognition was introduced and applied in the post-Cassis de Dijon23 era in the area of the four freedoms under the Treaty without a simultaneous reference to mutual trust. This begs the question: can there be mutual recognition without mutual trust? Certainly, some degree of trust (or rather the absence of outright distrust) is necessary in any human social interaction. Yet, putting aside the ambiguity and vagueness already contained in the very notion of mutual recognition,24 can mutual recognition be erected on a basis other than mutual trust? Can it be driven by different interests? The value-driven and hence necessarily dogmatic answer to that question is categorically no. There can be no mutual recognition, or for that matter a community of law, without mutual trust amongst its members. At a certain level, that answer is correct and necessary: in an age of backsliding, populist attacks and outright disregard of the rule of law, strongly affirming the central values underpinning the entire construct is as imperative as ever. However, leaving aside for a moment systemic failures of a structural kind and focusing on the various mechanisms of judicial cooperation, be they in criminal, civil or even administrative matters, such a sweeping answer may obfuscate important considerations that warrant attention. After all, there may be reasons other than an idealistic notion of trust that motivate Member States to subscribe to mutual recognition. First, systems of mutual cooperation requiring some mutual recognition in civil or criminal matters already exist between states, including some that are not EU

23 24

Judgment of 20 February 1979 in Case C-120/78 Rewe-Zentral EU:C:1979:42. Which leads notable scholars towards distrust of the appropriateness of the very term itself. See eg Stephen Weatherill, ‘The Principle of Mutual Recognition: It Doesn’t Work, Because It Doesn’t Exist’ (2018) 43 ELR 224; Stephen Weatherill, ‘Why There Is No “Principle of Mutual Recognition” in EU Law (and Why That Matters to Consumer Lawyers)’ in K Purnhagen and P Rott (eds), Varieties of European Economic Law and Regulation: Liber Amicorum for Hans Micklitz (Springer 2014).

Epilogue: Of Judges and Trust

Member States and with which Member States share few common values and little mutual trust. How much mutual trust and confidence exists, for example, behind treaties of mutual cooperation and assistance in judicial matters between, for example, EU Member States and a number of less developed countries all around the world? Second, despite the shortcomings of some of today’s Member States in upholding and protecting fundamental rights and the rule of law, cooperation under the various mechanisms of mutual recognition within the Union has held up with surprisingly few hiccups. There is no evidence of any unilateral suspension by any of the Member States,25 even though the Court of Justice explicitly left that possibility open in Celmer.26 It is thus safe to assume that Member States´ participation in a number of such mechanisms may also be driven by other interests more prosaic than mutual trust and confidence. Although banished from the realm of EU law,27 utilitarian reciprocity may well still play a part in terms of motivation. In a nutshell (cynical though it may sound), a Member State may decide to submit to such regimes not out of trust but in order to obtain something that it desires in return. Not all regimes are governed by the same degree of reciprocity. Some are more asymmetrical in terms of motivation and interests, or involve different interests on either side. A notable example of the latter is the European arrest warrant (EAW). In structural terms, the motivation is sometimes remarkably simple: some Member States may be interested in bringing their nationals home to face a criminal trial or serve a sentence, whereas others may be motivated by the desire to avoid becoming a sort of safe haven for such individuals. Thus, although the interests that bring the Member States together are not entirely symmetrical in nature, they ultimately align all the Member States behind the system. The importance of interests other than ‘angelic’ notions of mutual trust and confidence to a number of mechanisms in the AFSJ is neither surprising nor shocking. I am not making this point out of a desire to state the obvious with a cynical twist, but rather to highlight the interest-driven asymmetry that at times wields considerable influence over the judicial development of law in this area. In practical terms therefore, courts, including the Court of Justice, should, in my view, be particularly vigilant, and perhaps even somewhat distrustful, in the AFSJ, where the effective protection of fundamental individual rights and the legality of Member State action is in question. This is for a very simple reason. The cards

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26 27

Including the case of Mr Celmer himself, whose surrender to Poland was eventually authorised by the Irish High Court in The Minister for Justice and Equality v Celmer No 5 [2018] IEHC 639 (19 November 2018). Case C-216/18 PPU Celmer v Minister for Justice and Equality EU:C:2018:586. eg in Case C-232/78 Commission v France EU:C:1979:215, para 9.

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of the judicial game played in this area are rather unevenly stacked. Not all the interests and values present are sufficiently represented. The interpretation of the EAW framework decision and the cases in which I have had the privilege of delivering opinions over the years, as well as perhaps other instruments in the area of cooperation in criminal matters,28 show that the submissions of the interested parties that come before the Court in such cases tend to follow a similar pattern. The person accused or sentenced is seldom represented. In the rare cases where they submit observations to the Court, it is often through a lawyer appointed ex officio, which results in submissions of varying quality. The other party before the national court is the national prosecuting service, whose lawyers will naturally advocate a certain vision of the law, that, put diplomatically, is usually focused more on the execution of the EAW than on the protection of fundamental rights. The Member States and their governments, who are privileged, repeat players before the Court, tend to be of the same view, and often go in one and the same direction. It will thus, perhaps rather surprisingly,29 often fall to the Commission to remind the Court of the obligation to consider interests other than the smooth and automatic surrender of a person under the cooperation mechanism. Far be it from me to suggest that people subject to criminal trials in other Member States, or truck drivers smuggling alcohol subject to hefty excise duties into other Member States,30 or holiday makers who have simply failed to pay fines for parking violations in another Member State,31 to name just few examples, should all be lumped together as a ‘vulnerable group’ in need of special protection.32 I am suggesting something different. Also, moving from philosophical to practical considerations, it is equally difficult to suggest that the default position of a court, including the Court of Justice, when interpreting individual instruments in the area of mutual cooperation in criminal civil or administrative matters, should be one of trust. Given the asymmetry in the articulation of the legal arguments representing the various interests and values involved, a healthy dose of distrust and critical distance is once again called for. 28

29

30 31

Such as Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008 ] OJ L327/27, or Council Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [2008] OJ L337/102. Not because such interests would be unimportant for the European Commission as well, but rather because in practice it will often also mean that the venerated effet utile of a certain provision or a certain instrument is likely to be circumscribed or limited, which is normally not the position that the Commission would perhaps be likely to embrace in other areas of EU law. cf Case C-233/08 Kyrian EU:C:2010:11 and Case C-34/17 Donnellan EU:C:2018:282, for example. 32 cf Case C-551/15 Pula Parking EU:C:2017:193, for example. See Chapter 21.

Epilogue: Of Judges and Trust

22.3 Of Knowledge (and Rights, Again) There is one additional element, already alluded to in the previous Section, that is of considerable practical importance in the area of law discussed in the present volume. It is the issue of knowledge, or rather absence thereof, at both the judicial and the individual levels. To start with the judicial level, we tend to imagine judges as possessing complete knowledge of both law and the pertinent facts. Owing partly to the historical and sociological depiction of dispassionate rationality outlined above, civilian judges have traditionally been portrayed as automatic machines33 whose task is merely to subsume the facts under the applicable law. Certainly, the developments of the last century have rendered that image untenable,34 if indeed it ever had any actual purchase on reality.35 The horizontal dimension of the adjudication in matters of mutual recognition applied in various areas of the AFSJ puts those ideas to another test. Of course, a national judge deciding, say, on the recognition of a judgment imposing a suspended sentence and a probation measure from another Member State,36 or recognising and enforcing a (criminal) financial penalty from another Member State37 are only supposed to know and to apply their relevant national law and EU law. Yet in practice, all too often, doing so requires some degree of familiarity with the laws of the requesting Member State, which may in fact quickly turn into a separate exploration into the intricacies and far corners of case law on criminal legislation and procedure in the requesting Member State.38 In such instances, the limits of judicial knowledge are brought to the fore more strongly than ever. Certainly, the duty to communicate with, and in case of doubt 33

34 35

36

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38

See eg Regina Ogorek, Richterkönig oder Subsumtionsautomat? Zur Justiztheorie im 19. Jahrhundert (Klostermann 1986). See eg MW Hesselink, The New European Legal Culture (Kluwer 2001). See eg Laurence Montazel, Entre Faits et Droit: Histoire d’un Pouvoir Judiciaire. Les Techniques de la Cassation Civile en France et en Allemagne au XIXème Siècle (Klostermann 1998) 88, claiming that by the end of the nineteenth century the French Court of Cassation had acquired normative powers similar to those of the ancient parlements, under a different name and hidden behind the veil of virtually absent reasoning. Under Council Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [2008] OJ L337/102). Under Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties [2005] OJ L76/16). See eg my opinion in Case C-2/19 AP EU:C:2020:80 involving the Estonian Supreme Court (the executing Member State), in which that court was effectively asked to delve into the Criminal Code and the Code of Execution of Sentences of Latvia (the requesting Member State) to determine the probation measures applicable to a simple suspended sentence by operation of the law in the requesting Member State.

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to request supplementary information from, the requesting authority represents a universal escape hatch.39 However, in the logic of standardised, simplified judicial communication, that duty has its natural limits.40 Above all, however, it provides no remedy for the basic issue concerning the quality and standard of judicial information. National law does not normally distinguish between ‘national law – things that judge is supposed to know’ and ‘laws of other Member State – things that judge is not obliged to know and thus must trust that the other judges properly discharged their duty’. The logic of higher national instances, including national constitutional courts, and also that of the only potentially subsequent external review in these instances, the European Court of Human Rights in Strasbourg,41 is rather different: when exercising state powers and often coercive measures visà-vis an individual under their jurisdiction, all state action is subject to the same requirements of legality. In practice, however, the judicial difficulties that may be encountered in accessing and evaluating information from another Member State are nothing compared to those potentially faced by physical persons subject to any of the mechanisms on criminal, civil or administrative judicial cooperation. I understand that empathy might not be a fashionable tool for interpreting EU law. Personally, however, I am sometimes surprised at the ease with which some EU lawyers unworriedly gloss over an important practical issue that clearly diminishes the quality of legal protection provided, often tagged with a posh Latin proverb like vigilantibus iura and a categorical reaffirmation of the mutual trust not to be threatened by such concerns. I certainly have no intention of writing a novel on the hardships of a Czech prisoner surrendered under the EAW mechanism to a Greek prison where he understands nothing at all, or on what his daily life might look like.42 Yet, having had the privilege of seeing a number of cases in that area, I believe that a little empathy and realism goes a long way. The need for vigilance over effective individual rights protection in this particular area of law is compounded by the patchy nature of the individual instruments

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42

On the empowerment of executing judicial authorities in this regard in the context of eg the EAW FD, see Case C-270/17 PPU Tupikas EU:C:2017:628, para 91, and Case C-271/17 PPU Zdziaszek EU:C:2017:629, para 103. Above all, because the need for additional information from the authorities of the requesting Member State should remain an exception and not become the rule; cf Case C-367/16 Piotrowski EU:C:2018:27, para 61; my opinion in Case C-717/18 Valtònyc EU:C:2019:1011, para 80. See eg judgment of 23 May 2016, Avotin‚š v Latvia CE:ECHR:2016:0523JUD001750207, esp paras 113–16. As Justice Balík did in his literary dissent to the plenary judgment of the Czech Constitutional Court (Ústavní soud) on the constitutionality of the Czech Republic’s transposition of the EAW FD; judgment of 3 May 2006, case no Pl. ÚS 66/04 (published as no 434/2006 Coll; N 93/41 SbNU 195).

Epilogue: Of Judges and Trust

in it and the lack of sufficient common principles or rules. Focusing yet again only on judicial cooperation in criminal, civil and administrative matters, and thus completely ignoring matters of international protection, one is obliged to recognise the inconsistencies across the individual instruments. As Sara Iglesias Sánchez and Maribel González Pascual point out in their introduction, there are not even distinct ‘blocks’ present in this area. I would suggest that it is rather bricks, of different shapes and sizes, that are being clustered together and called a wall. To give an example: what about the communication of the requesting Member State’s judicial document (criminal, civil or administrative) to be enforced in the executing Member State in a language that the person in question understands? Is its addressee entitled to receive that document in a language that they understand, typically assumed to be that of the executing Member State? The intuitive answer would certainly be a resounding yes. How can a measure that the defendant does not understand be justifiably enforced against them? If there were any differentiation in the level of protection afforded to the different types of communication, it would perhaps relate to the severity of the document at issue: the greater the impact on the individual (a criminal measure, or a heavy administrative measure tantamount to a criminal one), the more linguistic protection would be called for. Conversely, the less impact there is (presumably in civil or commercial litigation), the more lenient such linguistic requirements might be. The reality has proved the opposite, however. Due to the patchy gradual emergence of individual rules in individual instruments, the most extensive protection in this regard was present, rather surprisingly, in civil and commercial matters. The reason is simply that the instrument instituting that type of cooperation43 is the oldest one. It was subsequently joined by a parallel convention,44 and then re-cast into regulations,45 the interpretation of which gave robust linguistic rights to the recipients of the civil or commercial judicial documents,46 even going as far

43

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46

1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1972] OJ L299/32), subsequently recast as two successive regulations: Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1, and Regulation 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1. Council Act of 26 May 1997 drawing up a Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters |1997] OJ C261/1. Council Regulation (EC) 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [2000] OJ L160/37), replaced by Regulation of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [2007] OJ L324/79). Starting with Case C-443/03 Leffler EU:C:2005:665.

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as to refuse the validity of the service if the appropriate form in Annex II to the regulation giving notice of rights to the addressee had not been translated and served properly.47 By contrast, it was initially possible to execute a European arrest warrant against a person on the basis of the document issued by the requesting Member State without having it translated into a language understood by that person. This proved particularly problematic when it came to EAWs issued for the purpose of executing a custodial sentence in cases where the person concerned had not previously received any official information about the existence of the criminal proceedings, since all that happened in the absence of the requested person. This was only remedied by a 2009 amendment48 to the original 2002 EAW design. Finally, until 2010, it was apparently possible to enforce a rather hefty outstanding tax bill in another Member State on the basis of a document served only in the language of the requesting Member State.49 Again, there was apparently no particular underlying legislative intent in that regard. The reason for that situation was simply that the original 1976 directive,50 upon which the action was based, envisaged only communications between the tax and administrative authorities. Successive amendments to that instrument were necessary to allow the authorities in the requested Member State to enforce tax and customs decisions and, in particular, debit notes from another Member States, without correspondingly consolidating procedural rules for the individuals concerned.51 In sum, mutual cooperation in judicial matters remains a patchwork of heterogeneous regimes, moving at different speeds and providing different levels of protection. These dynamics are certainly not fatal. After all, the role of courts, be they national or European, is also to close the gaps in legal protection. That being said, the courts must be allowed to perform this task. In extreme cases, they

47

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49 50

51

More recently, under the regime of the 2007 regulation, see eg Case C-519/13 Alpha Bank Cyprus EU:C:2015:603 and Case C-354/15 Henderson EU:C:2017:157. See Council Framework Decision 2009/299/JHA amending Framework Decisions 2002/584/ JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/24, recital (13). See the facts in Case C-233/08 Kyrian EU:C:2010:11, paras 23–28. Council Directive 76/308/EEC on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures [1976] OJ L73/18), as last amended by Council Directive 2001/44/EC of 15 June 2001 [2001] OJ L175/17. The original 1976 directive has since been recast twice, first as Council Directive 2008/55/EC on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures [2008] OJ L150/28, and soon afterwards as Council Directive 2010/24/EU concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures [2010] OJ L84/1.

Epilogue: Of Judges and Trust

must also find the courage to disable or close down a system that does not work. Moreover, at least some level of consistent protection must be built up gradually into a coherent whole that is common to all the individual regimes. While acknowledging the different origins and different pasts of the aforementioned individual bricks, once the scope of application of EU law is opened up by any of these instruments,52 the rights guaranteed are subject to one and the same EU Charter of Fundamental Rights. However, before arriving at that end destination called mutual trust, I would suggest that in the AFSJ, for all the reasons highlighted in this volume and this Epilogue, the right recipe to follow is not mutual trust, but rather a healthy dose of judicial distrust. Trust is something that may be built up gradually by bottom-up social interaction, by observing rules and respecting rights. Instant trust hastily decreed will do more damage than good. In the light of the legal history with which this Epilogue opened, all this is perhaps not that surprising. After all, building judicial trust (often rather limited, as it happens) within one and the same national system took decades, sometimes even centuries.

52

In accordance with art 51(1) of the Charter as interpreted in Case C-617/10 Åkerberg Fransson EU:C:2013:105.

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Index

A and S, 130, 133 A and B v Norway, 359, 365, 370 Abdulaziz, Cabales and Balkandali v UK, 124 Abdullahi, 93, 165 access to a lawyer, right of, 301–3 access to case materials, right of, 299–301 access to documents, right of, 173, 298 access to the file, right of, 159, 172–73 AFSJ (Area of Freedom Security and Justice) creation of, 58 crucial place of fundamental rights, 5–9 EU’s functioning as, 2–5 fundamental rights affected by, 21–22 legal spheres covered by, 21 Åkerberg Fransson, 28, 269 Al Chodor, 114–15, 116 Algeria, 368 Alheto, 160 Amsterdam Treaty, 58, 60, 83, 181 annulment procedures, predominant issues, 25 annulment, growing relevance of fundamental rights, 25 Aranyosi and Ca˘lda˘raru, 7, 50, 53, 66, 70, 279, 343, 350, 427 Arslan, 108 Associação Sindical dos Juízes Portugueses, 53 asylum quota system, 25 risk of impunity and, 51

see also asylum seekers; Dublin Regulations; effective remedy rights in asylum matters; migration and asylum law; right to asylum; right to liberty in asylum matters asylum seekers applications for short-term visas, 30 detention of, 110–16 enhancing the rights of, 44 exclusion from Family Reunification Directive, 119, 121 fingerprints, 383 minimum standards for reception of, 54–55, 65 risks for in Greece, 65 transfer of, 34, 49, 65–66, 77, 260, 426 unprecedented number of, 373 vulnerability of, 418, 425 audi alteram partem principle, 71, 189 Australia, 381 Austria, 201, 202, 205 automated decision-making, prohibition in data protection law, 390 Avotin‚š, 237 B and Vomero, 404 Belgium, 116, 143, 344, 406 Berlusconi, 338 Bero and Bouzalmate, 105, 117 Bourquain, 368 Bozkurt, 155 Brexit, 4, 293 Brussels Convention, 60, 63, 182, 247 Brussels II bis Regulations.

see under rights of the child and respect for family life Butt v Norway, 137 C and A, 135–36 cases A and S, 130, 133 A and B v Norway, 359, 365, 370 Abdulaziz Cabales and Balkandali v UK, 124 Abdullahi, 93, 165 Åkerberg Fransson, 28, 269 Al Chodor, 114–15, 116 Alheto, 160 Aranyosi and Ca˘lda˘raru, 7, 50, 53, 66, 70, 279, 343, 350, 427 Arslan, 108 Associação Sindical dos Juízes Portugueses, 53 Avotin‚š, 237 B and Vomero, 404 Berlusconi, 338 Bero and Bouzalmate, 105, 117 Bourquain, 368 Bozkurt, 155 Butt v Norway, 137 C and A, 135–36 Cassis de Dijon, 57 Celmer, 439 Chakroun, 128–29, 130, 398 Chavez-Vilchez, 401 Cimade and GISTI, 153 CK, 49, 54, 95, 427 Coman, 410 Covaci, 44, 295, 300 Dell’Orto, 324 DH, 113, 163 Di Puma, 361, 370 Diageo Brands, 247 Diallo, 399

Index

Digital Rights Ireland, 388, 392 Dogan, 134–36 Dorobantu, 50, 54 E, 132–33 eco cosmetics, 226, 228 Egenberger, 396 El Dridi, 109 El Hassani, 143, 144 Elgafaji, 150 European Parliament v Council, 126–28, 131 Fahimian, 401 Fathi, 153 Franz Fischer, 364 G and R, 106–7, 110, 117 Gambazzi, 246 Gambino and Hyka, 326 Garlsson, 359, 361, 370 Gazprom, 71 Ghezelbash, 94, 95, 165, 167 Gnandi, 154 Gözütok and Brügge, 63, 367 Gradinger, 364, 366 Gueye and Salmerón Sánchez, 326 Halaf, 151 Hirsi, 155 HT, 401 IB, 42 Ibrahim, 151 Ilias and Ahmed, 156 Imtech Marine, 226, 227–28 Jafari, 94–95 JD, 409 Jeremy F, 351 JN, 113, 117 K, 112–13, 117, 135–36 K and A, 134, 136 K and B, 131, 133 K and HF, 404 KA and Others, 399, 402 Kadzoev, 104–5, 107–8, 117 Kamberaj, 29 Kampanella v Italy, 204 Karim, 165 Katz, 430 Khachab, 130, 398 Kossowski, 358 Kozłowski, 42, 405 Kraaijenbrink, 363 Kretzinger, 367 Lanigan, 280 LM, 7, 53, 67, 70, 266–67

Lopes Da Silva, 42, 406 MA and Others, 153, 155–56, 420 Mahdi, 106, 107, 117, 155 McB, 34 Md Sagor, 109 Melloni, 25, 28, 41–42, 48, 98, 235, 261, 268, 351 Menci, 361, 370 Meroni, 247 MG, 404 Michaud v France, 204 Mikolenko v Estonia, 104 Milev, 45, 305 ML, 7, 50 Moro, 37 MSS v Belgium and Greece, 54, 116 Nabil and Others v Hungary, 112 NF, 154 Noorzia, 133–34, 136 NS and Others, 7, 29, 47– 48, 49, 54, 92, 150–51, 164–65, 260, 264 O, S and L, 129, 130, 399, 401 Oliveira, 364 Onuekwere, 404 Paoletti, 33 Parliament v Council, 24 Pellegrini v Italy, 217 Petruhhin, 407 Pham, 117 PI, 404 Piotrowski, 345 Pisciotti, 407 Popławski, 406 Povse, 51, 201–5 Puigdemont, 345 Pula Parking, 71, 190 Pupino, 319, 430 R (Zagorski and Baze) v Secretary of State for Business, Innovation and Skills, 32 Radu, 47, 343 Raugevicius, 407 Rayonna prokuratura Lom, 29 S and Marper v UK, 389 Saadi v UK, 113 Saciri, 55 Salvoni, 179–80, 188

Schrems, 388, 392 Schwarz v Bochum, 389 Scialdone, 338 Scoppola, 347 Segerstedt Wiberg v Sweden, 391 Sharifi, 155 Spasic, 369 Spetsializirana prokuratura, 36 Suso Musa v Malta, 113 Sut, 406 Syrian Humanitarian Visas, 142–43 Tarakhel v Switzerland, 49, 54 Taricco, 347, 351, 353 TC, 279 Torubarov, 160, 162 Trade Agency, 222, 245 Tranca, Reiter and Opria, 300 Tsakouridis, 404 Van Esbroeck, 362, 363, 366, 369 Van Straaten, 363 Wolzenburg, 42, 406 X, 399 X and X, 30, 32, 143–44, 154 YZ and Others, 137 Zambrano, 121, 129, 400 Zarraga, 201–4 Zeman, 397 Zolotukhin, 363–64, 365, 369 Cassis de Dijon, 57 Celmer, 439 certified mutual trust, 179–91 development of the principle of mutual recognition and, 180–83 formal requirements and judicial review, 186–89 judicial organs and their independence, 189–91 limits on free circulation of judicial decisions, 184–86 Chakroun, 128–29, 130, 398 Charter of Fundamental Rights of the EU, scope of application. see scope of application of the Charter

447

448

Index

Chavez-Vilchez, 401 child abduction by a parent, 51–52 changes to overriding mechanism, 207–9 CJEU case law (Povse and Zarraga), 201–4 ECtHR analysis of Povse, 204–5 overriding mechanism, 198–205 Brussels II bis Recast, 205–9 return and protection proceedings enhancement proposals, 206–7 children citizenship law and, 399 definition of child, 194–95 detention of, 120 Dublin Regulations and, 153, 420 family life and the best interests of, 119–38 free movement rights and, 409 minimum standards for reception of asylum seekers and, 55 potential use of DNA samples, 383 procedural safeguards for in criminal matters, 307–8 rights of child victims, 318, 320, 404 vulnerability rationale, 420–23, 428–30 see also child abduction; Family Reunification Directive; rights of the child and respect for family life Cimade and GISTI, 153 citizenship and nondiscrimination rights, 394–412 EU immigration policy and, 398–402 free movement rights and EU citizenship, 395–98 judicial cooperation in civil matters, 408–10 security perspectives, 402–8

CK, 49, 54, 95, 427 Coman, 410 Common European Asylum System (CEAS), 49 Convention on the Rights of the Child, 193, 195 Covaci, 44, 295, 300 data protection, 373–93 application of the law, 386–92 effective judicial protection rights, 391–92 prohibition of automated decision-making, 390 purpose limitation, 386–88 special categories of personal data, 388–89 strict necessity test, 388 transfer of personal data to third states, 391 data processing within AFSJ, 373–74 databases and interoperability, 382–86 establishment of new databases, 385 Eurodac, 383 regulations on interoperability, 386 Schengen Information System, 382–83 Visa Information System, 384–85 ECHR and data protection in the Council of Europe framework, 374–75 in EU law, 375–77 information exchange, 378–82 Europol and Eurojust, 378–79 passenger data, 380–81 Prüm Decision, 379–80 third-country agreements, 381–82 see also GDPR defence rights and effective remedies in criminal matters, 289–311 access to a lawyer, 301–3 directives on procedural rights, 291–93

information rights, 298–301 arrested or detained individuals, 298–99 information on the accusation and right of access to case materials, 299–301 interpretation and translation rights, 293–98 infringement, 297 interpretation, 295–96 legal requirements, 294–95 quality obligations, 297 translation of essential documents, 296–97 legal aid, 308–10 presumption of innocence and right to be present at the trial, 304–7 procedural safeguards for children, 307–8 way forward, 310–11 Dell’Orto, 324 Denmark, 292 detention asylum seekers Asylum Reception Conditions Directive, 111–14 Dublin Regulations, 114–16 grounds for under the Return Directive, 104 information rights, 298–99 infringement of rights as grounds for automatic release, 106 maximum period under the Return Directive, 108, 117 pending recognition of EAW, 277–80 permissibility under the Return Directive, 100 pre- and post-conviction alternatives to, 285–87 detention of children, incompatibility with right to family life and best interests of the child principle, 120 DH, 113, 163

Index

Di Puma, 361, 370 Diageo Brands, 247 Diallo, 399 Digital Rights Ireland, 388, 392 Dogan, 134–36 Dorobantu, 50, 54 Dublin Regulations compatibility with fundamental rights of asylum applicants, 48, 98–99, 150, 152, 175, 260–65 detention of asylum seekers, 536.1 effective remedy rights in asylum matters, 164– 69, 175 Eurodac and, 383 Expulsion Decisions Directive and, 92 family reunification criteria, 119 mutual trust and, 62 perverse incentives created by, 94–95 potential for challenging a transfer under, 93 reform, 44 relationship with Schengen, 95 rights-restricting measures, 92–97 transfer of asylum seekers, 526.1, 526.2, 526.3, 93–95, 97 unaccompanied children and, 153 VIS and, 384 vulnerability and, 420, 426–27 E, 132–33 eco cosmetics, 226, 228 effective remedies and fair trial in civil matters. see fair trial and effective remedies in civil matters effective remedy rights in asylum matters asylum directives, 160–64 critical assessments, 161–64, 166

Dublin procedures, 164–69 in CJEU case law, 160–61, 164–66 procedural rights related to right to be heard, 172–74 right to be heard, 169–72 Egenberger, 396 El Dridi, 109 El Hassani, 143, 144 Elgafaji, 150 Estonia, 407 European arrest warrant (EAW) access to a lawyer, 302 adoption following 9/11 attacks, 403 compatibility with fundamental rights, 257–60 compliance with legality principle, 25 detention pending recognition of, 277–80 fairness of proceedings and, 297 legal aid, 310 legality principle and, 341–42 motivations for use, 439–40 mutual recognition and, 66, 257–60, 343 mutual trust and, 63, 253, 254–57 mutual trust and recognition, 254–57 ne bis in idem context, 354, 356 non-execution for minors, 344 potential for suspension, 52, 54, 66–68 prevention of impunity and, 51, 368–69, 407, 408 protection of fundamental rights and, 41, 43, 48, 54 reintegration and, 405–6, 411 relationship with mutual trust and fundamental rights, 260–70 role of national courts, 25 transfer of prisoners, 286 translation issues, 444 vulnerability rationale, 420, 427

European Firearms Directive, 397 European Pact on Immigration and Asylum, 85 European Parliament v Council, 126–28, 131 ‘exceptional circumstances’ jurisprudence, 68, 70, 71, 191, 226 exequatur procedure, 208, 221, 223, 243 suppression of, 181–82 Expulsion Decisions Directive (EDD), 84–87 Fahimian, 401 fair trial and effective remedies in civil matters, 211–30 Charter, 218–227 ECHR, 212–18 exequatur and public policy review, 221–23 exhaustion of remedies, 223–24 guarantees and scopes, 218–21 instruments and scrutiny, 224–27 Member State of origin challenges, 223–27 preliminary references and the enhancement of justice, 227–30 see also procedural rights in civil matters family life, right to, 42–44 Family Reunification Directive CJEU case law, 125–137 criticisms, 121 development and state practice, 120–23 differentiation and fragmentation, 138 European Parliament v Council, 126–28 fraud case, 137 human rights perspective, 123–25 immigration policy and citizenship rights, 398–402 implementation in Member States, 122–23 integration cases, 133–37

449

450

Index

Family Reunification (cont.) refugee cases, 130–33 resources cases, 128–30 Fathi, 153 forced labour, prohibition of slavery and, 70 France, 368 Franz Fischer, 364 free movement of goods, mutual recognition and, 58 free movement rights children and, 409 EU citizenship and, 395–98, 407 judicial cooperation in civil matters and, 408–10 mutual recognition and, 58, 61, 408 Return Directive and, 109 right to family reunification and, 122 same-sex marriage and, 410 scope of legal provisions, 32 security perspectives, 402–8 TCNs, 79–88, 122 Frontex, 26 G and R, 106–7, 110, 117 Gambazzi, 246 Gambino and Hyka, 326 Garlsson, 359, 361, 370 Gazprom, 71 GDPR (General Data Protection Regulation), 376–77, 387–88, 390–93 Germany, 44, 105, 179, 202, 343, 368–69, 407 Ghezelbash, 94, 95, 165, 167 Gnandi, 154 Gözütok and Brügge, 63, 367 Gradinger, 364, 366 Greece, 65, 116, 151 Gueye and Salmerón Sánchez, 326 Halaf, 151 Hirsi, 155 HT, 401 human rights, 39–56 debate on the role of EU law, 41–47 ECHR’s role in cases of horizontal cooperation, 53–55

fair trial and effective remedies in civil matters, 212–18 Family Reunification Directive, 123–25 grounds for suspension of mutual recognition, 52–53 judicial cooperation and the role of impunity, 50–52 mutual trust and presumption of sufficient protection, 47–55 right to family life, 42–44 role of secondary law, 44–47 IB, 42 Ibrahim, 151 Ilias and Ahmed, 156 impunity EAW prevention measures, 51, 368–69, 407, 408 judicial cooperation and, 50–52 Imtech Marine, 226, 227–28 information exchange Europol and Eurojust, 378–79 passenger data, 380–81 Prüm Decision, 379–80 third-country agreements, 381–82 information rights arrested or detained individuals, 298–99 information on the accusation and right of access to case materials, 299–301 innocence, presumption of. see presumption of innocence interpretation and translation rights infringement, 297 interpretation, 295–96 legal requirements, 294–95 quality obligations, 297 translation of essential documents, 296–97 interpretation and translation, rights to in criminal matters, 293–98

Ireland, 292 Irish Refugee Appeal Tribunal, 161 Italy, 201, 204, 261, 346, 353, 363, 369, 408 Jafari, 94–95 JD, 409 Jeremy F, 351 JN, 113, 117 judicial cooperation and right to liberty in criminal matters, 273–74 certified mutual trust, 179–91 citizenship and nondiscrimination rights, 408–10 development within mutual trust and recognition, 60–62 effective remedies and fair trial in civil matters, 211–30 impunity and, 50–52 judicial organs and their independence, 189–91 judicial knowledge, mutual trust and recognition, 441–45 Judicial Redress Act, 381 K, 112–13, 117, 135–36 K and A, 134, 136 K and B, 131, 133 K and HF, 404 KA and Others, 399, 402 Kadzoev, 104–5, 107–8, 117 Kamberaj, 29 Kampanella v Italy, 204 Karim, 165 Katz, 430 Khachab, 130, 398 knowledge, judicial, 441–45 Kossowski, 358 Kozłowski, 42, 405 Kraaijenbrink, 363 Kretzinger, 367 Lanigan, 280 Latvia, 247, 407 legal aid, right to, 13, 71, 159, 172, 173–74, 301,

Index

308–10, 320, 324–25, 329 legal assistance and representation, right to, 173 legality principle, 331–53 balancing security and liberty, 352–53 challenges for the principle in EU law, 348–53 ECHR, 333–34 interpretation of criminal law, 339–40 jurisdiction rules, 345–46 limitation rules, 346–48 limiting the principle, 340–48 multilevel justice, 350–52 mutual recognition and, 341–45 national constitutional traditions, 333 non-retroactivity of criminal law, 337–39 origins in EU, 332–34 precision of criminal law, 336–37 purpose, 348 requirements, 331–32 sources of criminal law, 334–36 theoretical rationales, 348–50 Lisbon Treaty asylum rights and, 78, 150 defence rights and, 267 EAW and, 260 human rights and, 270 victims’ rights and, 313–15, 317 vulnerability and, 419 LM, 7, 53, 67, 70, 266–67 Lopes Da Silva, 42, 406 MA and Others, 153, 155–56, 420 Maastricht Treaty, 58 Mahdi, 106, 107, 117, 155 McB, 34 Md Sagor, 109 Melloni, 28, 41–42, 48, 98, 235, 261, 268, 351 Menci, 361, 370 Meroni, 247

MG, 404 Michaud v France, 204 migration and asylum law, 77–99 effective remedies and defence rights, 159 ‘exceptionalisation’ of fundamental rights, 97–99 family life and the best interests of the child, 119–38 immigration policy and citizenship rights, 398–402 mutual recognition and, 79–97 objectivation of mutual trust and, 77–79 rights-conferring measures, 79–84, 90–92 rights-restricting measures, 84–88, 92–97 strengthening procedural rights, 174–76 see also asylum; asylum seekers; Dublin Regulations; effective remedy rights in asylum matters; right to asylum; right to liberty in asylum matters Mikolenko v Estonia, 104 Milev, 45 ML, 7, 50 Moro, 37 MSS v Belgium and Greece, 54, 116 mutual recognition as cornerstone of judicial cooperation, 61 EU asylum law, 88–97 rights-conferring measures, 90–92 rights-restricting measures, 92–97 EU migration law, 79–88 rights-conferring measures, 79–84 rights-restricting measures, 84–88 fundamental rights as exceptions to, 34–35

human rights grounds for suspension of, 52–53 legality principle and, 341–45 limits on free circulation of judicial decisions, 184–86 political background and legislative developments, 180–83 suppression of exequatur, 181–82 see also mutual trust and recognition mutual recognition in criminal matters, 253–71 fundamental rights concerns in legislation, 257–60 mutual trust and the EAW, 254–57 relationship with mutual trust and fundamental rights, 260–70 transformative role of compliance with fundamental rights, 270–71 mutual trust Dublin Regulation on the need to develop, 62 first explicit reference to, 60–61 moral foundation for the principle of mutual recognition, 64 mutual trust and recognition balance between AFSJ integration and fundamental rights, 68–73 development of the principles, 57–59 development within judicial cooperation, 60–62 exceptional circumstances jurisprudence, 57–74, 191, 226 judicial knowledge and, 441–45 mutual cooperation and, 438–40 mutual trust as counterpoint to mutual recognition in CJEU case law, 62–65 the law and, 433–37

451

452

Index

Nabil and Others v Hungary, 112 national courts cooperation with CJEU, 4 role in policing compliance of EU acts with fundamental rights, 25 ne bis in idem principle, 354–70 bis element, 357–61 development of interpretation, 369–70 enforcement requirement from art 54 CISA, 367, 369 idem element, 361–65 implications for mutual trust in criminal justice systems, 63 scope of application, 365–66 significance for the AFSJ, 354–55 sources, 355, 357 NF, 154 non-discrimination principle, and the right to family life, 43 non-refoulement principle, 92, 95, 142, 146, 150, 153–54, 155–56 Noorzia, 133–34, 136 NS and Others, 7, 29, 47–48, 49, 54, 92, 150–51, 155, 164–65, 260, 264 O, S and L, 129, 130, 399, 401 Oliveira, 364 Onuekwere, 404 outsourcing, of administrative tasks, 26 Paoletti, 33 parental abduction of a child, 51–52 Parliament v Council, 24 passenger name record data, draft agreement between Canada and EU on transfer/ processing, 24 Pellegrini v Italy, 217 personal data, transfer to third states, 391

Petruhhin, 407 Pham, 117 PI, 404 Piotrowski, 345 Pisciotti, 407 Poland, 66, 143 Popławski, 406 Povse, 51, 201–5 presumption of innocence burden of proof issues, 36 legality principle and, 349 pre-trial detention and, 36, 276, 282–84 and the right to be present at the trial, 304–7 right to liberty and, 45–46, 273–74 private life and data protection. see data protection procedural rights in civil matters application by CJEU and national courts, 244–48 judgments in default, 247–48 obligation to use all remedies in the Member State of origin, 246–48 public policy clause, 246–47 balancing parties’ rights, 240–42 definition of procedural rights, 231 potential influence of EU rules, 243–44 sources, 235–36 fundamental rights and interests perspective, 240–44 importance of ECHR, 236, 237 primary law, 236 regulatory competences, 237–40 secondary law, 237–44 procedural rights in criminal matters requirements of all directives, 291–93 right to information, 298 right to liberty, 280–85

procedural rights in migration and asylum matters, strengthening, 174–76 public powers, scope of application of the Charter, 23–26 Puigdemont, 345 Pula Parking, 71, 190 Pupino, 319, 430 R (Zagorski and Baze) v Secretary of State for Business, Innovation and Skills, 32 Radu, 47, 343 Raugevicius, 407 Rayonna prokuratura Lom, 29 Reception Conditions Directive (RCD), 99, 111, 112, 113–14, 423 refoulement prohibition of, 146 see also non-refoulement principle Refugee Convention, 87, 90, 97, 98, 141 refugee crisis, EU and Member States’ policy responses, 139–42 refugees, movement rights under EU law, 90–91 resilience, vulnerability and, 417–21 Return Directive aim and scope, 103 deprivations of liberty under, 104–8 effectiveness, 108–10 free movement rights and, 109 grounds for detention, 104 maximum period of detention provisions, 108, 117 mutual trust and, 77 permissibility of detention under, 100 provision of effective remedy requirements, 108 vulnerability and, 418, 424, 427 right of access to documents, 173, 298

Index

right to asylum, 139–58 CJEU case law, 149–55 challenges for (refugee crisis), 139–42 definition issues, 140–41 ECtHR case law, 155–56 EU Treaties and national institutions, 148–49 Member States’ recognition and influence, 148–49 non-refoulement principle, 92, 95, 142, 146, 150, 153–54, 155–56 normative components, 145–56 scope of application, 142–45 value of art 18 and future prospects, 157–58 right to be heard CJEU case law, 125–37 critical assessment, 170, 172 infringement as grounds for automatic release of detainees, 106 related procedural rights, 172–74 see also access to documents; access to the file right to family life, 42–44 right to family reunification eligibility criteria, 119 see also Family Reunification Directive right to legal aid, 13, 71, 159, 172, 173–74, 301, 308–10, 320, 324–25, 329 right to legal assistance and representation, 13, 159, 172–73 right to liberty in asylum matters, 100–18 Charter provisions, 101–3 comparison of legal instruments, 117–18 deprivation of liberty under the Return Directive, 104–8 detention of asylum seekers, 110–16

Dublin regulations, 114–16 Reception Conditions Directive, 111–14 effectiveness of the Return Directive, 108–10 legal instruments, 100–1 return proceedings context, 103–10 right to liberty in criminal matters, 272–88 detention pending recognition of EAW, 277–80 judicial cooperation and, 273–74 key features of EU law, 275–76 pre- and post-conviction alternatives to detention, 285–87 procedural rights directives and, 280–85 rights of the child and respect for family life, 192–210 best interests of the child, 197–98 comparison of Brussels II bis Regulation with Recast, 209–10 definition of child, 194–95 EU legislation, 192–94 overriding mechanism in child abduction cases, 198–205 Brussels II bis Recast, 205–9 right to be heard, 195–97, 244 see also child abduction; children Russia, 407 S and Marper v UK, 389 Saadi v UK, 113 Saciri, 55 Salvoni, 179–80, 188 same-sex marriage, free movement rights and, 410 Schengen Agreement Dublin Regulations and, 95 TCNs’ rights, 79–80

Schengen Information System (SIS), 382–83 Schrems, 388, 392 Schwarz v Bochum, 389 Scialdone, 338 scope of application of the Charter, 21–38 Art 51(1) as autonomous scope-defining rule, 23–30 challenges for expansion, 34–37 fundamental rights as exceptions to mutual recognition, 34–35 Member States in the AFSJ, 27–30 overlapping of rights and secondary law, 35–37 personal scope, 31–32 public powers, 23–26 role of rights, 31 temporal scope, 33 territorial scope, 32 Scoppola, 347 Segerstedt Wiberg v Sweden, 391 Sharifi, 155 slavery and forced labour, prohibition of, 70 Spasic, 369 Spetsializirana prokuratura, 36 Stockholm Programme, 181, 290, 315, 317 Suso Musa v Malta, 113 Sut, 406 Switzerland, 261 Syrian Humanitarian Visas, 142–43 Tampere European Council, 61, 180–81, 290 Tarakhel v Switzerland, 49, 54 Taricco, 347, 351, 353 TC, 279 terrorism counterterrorism directive, 336 cross-border cooperation and, 379 derogation of rights and, 303

453

454

Index

terrorism (cont.) victims’ access to legal aid, 320 terrorist attacks, 332, 373, 403 Terrorist Financing Tracking Programme (TFTP), 381 Torubarov, 160, 162 Trade Agency, 222, 245 trafficking, 318, 320, 414, 418, 421, 422, 424, 428 Tranca, Reiter and Opria, 300 translation of documents, Member States’ responsibilities, 45 trust and recognition, the law and, 433–37. see also mutual trust and recognition, Tsakouridis, 404 Turkey, 26, 151 United Kingdom (UK), 259, 292 see also Brexit United States of America (USA), 373, 381, 407

Van Esbroeck, 362, 363, 366, 369 Van Straaten, 363 victims’ rights, 312–30 compensation rights of cross-border victims, 315–17 development in the EU, 312–15 establishment of minimum standards on rights support and protection, 323–27 future expectations, 328–30 information about procedural rights, 429 protection measures for victims of certain offences, 317–20 protection through mutual recognition instruments, 320–23 vulnerability, 421 Visa Code, 30, 32, 143, 164, 384 vulnerability, 431–32

collective vulnerability, 415–17 duty to protect and, 424–30 as normative criterion for justice, 430–32 negative adaptations of protection, 425–28 positive adaptations of protection, 428–30 presumptive vulnerability, 421–23 resilience and, 417–21 special protection regimes, 424–25 Wolzenburg, 42, 406 X, 399 X and X, 30, 32, 143–44, 154 YZ and Others, 137 Zambrano, 121, 129, 400 Zarraga, 201–4 Zeman, 397 Zolotukhin, 363–64, 365, 369